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Full text of "Rose's notes on the United States Supreme court reports (2 Dallas to 241 United States reports) showing the present value as authority of all cases therein reported as disclosed by all subsequent citations in all the courts of last resort, both federal and state, and in the annotation in American decisions, American reports, American state reports, Annotated cases (American and English), Lawyers' reports annotated, English ruling cases, British ruling cases, Negligence and compensation cases annotated, with parallel references to the above-mentioned Annotated cases, the Lawyers' edition of the U. S. reports and the Reporter system"

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NOTES 


ON  THE 


UNITED  STATES  SUPREME  COUET  REPORTS 


BMBBACINQ  VOLUMES 


2-4  DALLAS;  1-^  OEANOH;  1-8  WHEATON 


THE  CITATIONS  IN  THIS  BOOK 


include  all  from  the  following  reports  and  all  preceding  them  in  each 
State  or  series : 


U.  S 241 

L.  Ed 60 

Fed 233 

Alft 192 

Alaska 4 

Ariz 17 

Ark 120 

Cal 171 

Cal.  App 28 

Cal.  Unrep 7 

Colo 60 

Colo.  App 27 

Conn / 89 

Del 4  Boyce 

D.  C.  App 44 

Fla 69 

Ga 144 

Idaho  28 

III 272 

Ind 183 

Ind.  App 59 

Iowa 171 

Kan 96 

Ky 169 

La 138 

Mc 113 

Md 127 

Mass 222 

Mich 186 

Minn 130 

Miss 108 

Mo 266 

Mo. -App 192 

Mont 51 

Neb 98 

Nev 38 


N.  H 77 

N.  J.  Eq 84 

*^ •    *» •  •^-^ .    ••••.•••■•.•••«,•*•>••*  0/ 

N.  M 18 

N.  Y 217 

N.  C 170 

N.  D 32 

Ohio   92 

Okl 45 


10 
.79 

251 
37 

101 


Okl.  Cr 

Or 

Pa 

E.  I 

S.  C. 

S.  D 35 

Tenn 134 

Tenn.  Civ 5 

Tex 10<) 

Tex.  Cr 74 

Tex.  Civ 62 

Utah   45 

Vt 88 

Va 118 

Wash 90 

W.  Va 75 

Wis 102 

Wyo 22 

Am.  Dec.  [notes]- 100 

Am.  Rep,  [notes]    60 

Am.  St.  Rep.  [notes] 140 

Ann.  Cas.  (Am.  &  Eng.)  [notes]  1916E 

L.  R.  A.   [notes]. 1916D 

N.  C.  C.  A.  [notes] 10 

B.  R.  C.  [notes] 5 

E.  R.  C.  [notes] 26 


with  duplicate  references  to  Am.  Dec,  Am.  Rep.,  Am.  St.  Rep.,  Ann. 
Cas.  (American  and  English),  L.  R.  A.,  N.  C.  C.  A.,  and  the  Reporter 
System. 


ROSE'S  NOTES 

ON   THE 

UNITED  STATES  SUPREME  COURT  REPORTS 

(2  Dallas  to  241  United  BUtes  Reports) 

8HOWINO  THE 

PSESE9T  VALXTE  AS  AXTTHORITY 

OF  AU.  OASES  THEBEDT  BEPOBTED  AS  DISCLOSED 

BT  ALL  ST7BSEQT7ENT 

CITATIONS 

IN    ALL   THE   C0UBT8  OF  LAST   RESORT,  BOTH   FEDERAL   AND 

STATE,  AND  IN  THE  ANNOTATIONS  IN  AMERICAN  DECISIONS, 

AMERICAN    REPORTS,     AMERICAN     STATE     REPORTS, 

ANNOTATED  CASES   (AMERICAN  AND  ENGLISH), 

LAWYERS'  REPORTS  ANNOTATED,  ENGLISH 

RULING  CASES,  BRITISH  RULING  CASES, 

NEGLIGENCE  AND  COMPENSATION 

CASES  ANNOTATED 

WITH 

PARALLEL  REFERENCES  TO  THE  ABOVE-MENTIONED  ANNOTATED 
CASES,  THE  LAWYERS'  EDITION  OF  THE  U.  S.  REPORTS 

AND  THE  REPORTER  SYSTEM 

WALTER  MALINS  ROSE 

COMPLETE  BETISED  EDITION  BT 

CHAS.  L.  THOMPSON 

BOOK  ONE 

2  Dallas  to  8  Wheaton,  Inclusive 

BANCBOFT-WHITNEY  COMPANY, 
San  Francisco 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  COMPANY, 

RochcstoT,  N.  Y. 

1917 


\ 


Copyright,  1899 

BY 

WALTER  MALINS  ROSE 


% 


COPYBIOHT,    1904 
BY 

BANCROFT-WHITNEY  COMPANY 


Copyright,  1909 

BY 

BANCROFT-WHITNEY  COMPANY 


Copyright,*  1917:  ;  •:    ..     r 

*'.  •  •      •      •  :  -••       •'!.;♦••     •    ; 


r»        • 


BANCROFT-WHITNEY  COMPANY 


237773 


San  Francisco 

Thb  Filhxr  Brothers  Electrotype  Company 

Typographers  and  Stereotypers 


N 


PREFACE  TO  REVISED  EDITION. 


In  pnblishing  this  revised  edition  of  Rose's  Notes  on  United  States 
Snpreme  Court  Reports  the  publishers  have  been  prompted  by  the  knowl- 
edge that  the  membership  of  the  American  Bar  have,  ingencral,  learned 
the  ^eat  utility  of  citation  information  and  have  so  adapted  themselves 
to  the  use  of  annotated  citations  that  a  work  such  as  Rose's  Notes  on 
United  States  Supreme  Court  Reports  is  an  indispensable  adjunct  to  the 
busy  lawyer  engaged  in  legal  research. 

The  first  edition  of  this  work  was  prepared  by  Mr.  Walter  Malins  Rose, 
and  the  first  volume  was  published  in  1899,  by  Bancroft- Whitney  Com- 
pany, of  San  Francisco,  Cal.  At  that  time  the  use  and  value  of  citations 
of  cases  was  practically  unknown  to  the  profession.  The  great  number 
of  citations  which  have  accumulated  since  the  publication  of  the  first 
edition  is  the  weightiest  testimony  of  the  great  practical  use  to  which 
citations  have  been  employed  by  both  courts  and  practitioners.  The  num- 
ber of  citations  of  United  States  Supreme  Court  Reports  which  have 
accumulated  since  the  publication  of  Rose's  Notes  on  United  States  Su- 
preme Court  Reports  in  1899  is  equal,  if  not  greater,  than  all  of  the 
citations  which  had  accumulated  in  all  the  years  prior  to  that  time. 

In  the  preparation  of  this  edition  the  original  work  of  Mr.  Rose  has 
been  completely  revised  and  corrected  whenever  necessary.  The  great 
number  of  new  citations  have  made  it  incumbent  upon  the  editor  to  so 
arrange  the  new  matter  that  the  investigator  may,  without  the  loss  of 
any  time,  obtain  the  latest  interpretation  of  the  principle  under  investiga- 
tion,  and  at  the  same  time  get  a  full  and  comprehensive  view  of  the 
various  applications  thereof.  The  system  of  treating  the  citations  and 
the  general  arrangement  has  been  the  same  as  in  the  original  edition, 
with  the  exception  that  index  phrases  of  the  cited  principles  have  been 
nsed,  whenever  possible,  in  the  place  of  syllabi  and  only  cited  syllabi  have 
been  used.  Cases  which  have  not  been  cited  up  to  the  time  of  the  publi- 
cation of  this  edition  are  included  in  their  p^per  chronological  order  and  are 
followed  by  the  words  "not  cited." 

In  the  treatment  of  the  citations  in  the  various  monographic  notes  con- 
tained in  the  various  annotated  cases  the  title  of  the  subject  matter  of  the 
note  has  been  given  in  all  instances,  and  not  merely  the  bare  citation. . 

The  original  publishers,  realizing  the  great  worth  of  the  Lawyers  Edi- 
tion of  United  States  Supreme  Court  Reports,  have  associated  the  pub- 
lishers of  that  series,  the  Lawyers  Co-operative  Publishipg  Company  of 
Rochester,  N.  Y.,  in  this  enterprise. 

CHAS  L.  THOMPSON. 
San  Francisco,  Cal.,  January,  1917. 

(V) 


PREFACE. 


The  many  novel  features  of  this  publication  justify  a  somewhat  detailed 
statement  of  its  scope  and  the  method  of  its  preparation. 

Broadly  speaking,  it  consists  of  two  classes  of  matter:  first,  chronologi- 
cally arranged  syllabi  of  all  points  of  law  determined  in  the  Supreme  Court 
decisions;  and  second,  notes  appended  to  such  syllabi,  based  upon  and  col- 
lecting all  the  subsequent  citing  cases  pertaining  thereto.  These  citation 
notes  are  prepared  by  the  editors  from  complete  numerical  tables  of  citations 
which  disclose  as  to  each  case  all  the  subsequent  cases  in  which  it  has  been 
cited  in  the  Supreme  Court,  the  intermediate  and  inferior  Federal  courts, 
and  the  courts  of  last  resort  of  all  the  States  of  the  Union.  Proceeding  upon 
the  theory  that  the  profession  wants  something  more  than  bald,  unclassified 
numerical  tables  of  citations,  the  notes  aim  to  present  complete  citation  in- 
formation respecting  each  case  in  the  most  orderly  and  available  form ;  and 
to  that  end  the  citing  cases  are  so  classified  and  discussed  as  to  show  the 
points  to  which  they  cite,  their  nature,  their  application  of  the  cited  prin- 
ciple, and  their  general  effect. 

It  is  earnestly  believed  that  the  plan  of  arrangement  adopted  in  the  prepa- 
ration of  the  notes  will  commend  itself  to  the  large  and  growing  class  of 
lawyers  who  have  already  learned  the  utility  of  citation  information,  and 
convert  yet  others  to  a  realization  of  the  importance  of  this  groove  of  in- 
vestigation in  the  rapid  and  exhaustive  compilation  of  authorities  on  any 
given  point. 

That  plan  has  been  to  examine,  group,  and  classify  the  citations  of  each 
annotated  case  under  the  respective  syllabus  points  to  which  they  pertain. 
Within  that  classification  they  have  been  further  separated,  the  cases  which 
afi&rm,  follow,  or  apply  the  syllabus  principle  being  treated  first,  followed 
by  the  cases  which  distinguish,  qualify,  criticise,  limit,  or  deny  it,  in  a 
separate  paragraph,  so  as  most  readily  to  indicate  the  present  status  of  the 
case  as  an  authority  and  the  extent  and  limits  of  its  applicability.  In  each 
instance,  the  notes  show  the  circumstances  or  state  of  facts  to  which  the 
citing  case  applies  the  cited  principle;  or,  as  the  case  may  be,  the  grounds 
upon  which  it  distinguishes  or  qualifies  it.  The  cases  which  neither  apply, 
nor  distinguish,  nor  question  the  syllabus  principle — ^which  affirm  the  doc- 
trine merely  in  an  obiter  discussion — are  for  obvious  reasons  treated  most 
briefly  and  placed  after  the  applying  cases  and  before  the  paragraph  con- 
taining the  distinguishing  and  criticising  cases.  In  addition,  the  rule  has 
been  where  the  citing  case  collects  or  reviews  a  number  of  authorities,  to 
note  that  fact,  and  it  is  hoped  that  this  will  prove  an  assistance  where  ihe 
investigator  is  seeking  a  rapid  compilation  of  authorities. 

(vii) 


/ 


viii  PREFACE. 


/ 


In  a  few  of  the  great  cases  this  general  plan  of  treatment  has  been  de- 
parted from  in  favor  of  a  more  elaborate  and  analytical  discussion. 

In  the  preparation  of  the  syllabi,  clearness,  brevity,  and  the  statement  of 
legal  principles,  rather  than  complicated  rehearsals  of  fact,  have  been  earn- 
estly striven  for.  Syllabi  of  propositions  decided  but  not  thereafter  cited, 
are  included,  as  well  as  syllabi  of  points  as  to  which  the  case  has  been  cited. 
Many  of  these  latter  have  not  hitherto  been  syllabused  or  digested  at  all,  and 
are  brought  to  light  for  the  first  time  by  the  method  of  preparation  of  this 
work.  Obviously,  this  adds  greatly  to  the  value  of  the  digest  feature  of  the 
publication,  which  is  to  be  supplemented  and  rendered  accessible  by  a  com< 
plete  index  of  subject  matters. 

So  much  for  the  nature  and  scope  of  the  notes.  The  writer  is  tempted,  in 
conclusion,  to  call  attention  to  certain  considerations  which  experience  has 
forcibly  shown  in  Mie  practical  use  of  the  complete  citations  of  the  Supreme 
Court  reports.  That  they  will  disclose  the  extent  to  which  a  case  is  an  au- 
thority to-day  is  sufficiently  obvious.  But  experience  in  their  use  further 
shows  that  they  are  by  far  the  most  rapid  agency  for  the  collecting  of  a 
number  of  authorities  on  a  point,  particularly  if  the  point  is  somewhat  out 
of  the  beaten  track,  and  is  touched  upon  by  but  a  few  cases  in  all  of  the 
law.  Indeed,  it  is  plain,  a  priori,  that  a  decision  of  the  National  Supreme 
Court  on  any  proposition  of  law  will  be  more  widely  cited  and  referred  to 
than  State  court  cases,  and  consequently  that  its  citations  will  collect  a  very 
considerable  proportion  of  all  the  authorities  on  the  point.  Not  only  this, 
but  they  will  often  disclose  cases  which  could  not  be  obtained  through  other 
channels  at  all,  for  the  sufficient  reason  that  the  point  has  been  buried  by 
failure  to  syllabus  it. 

Inasmuch  as  the  decisions  of  the  Supreme  Court  have  quite  thoroughly 
covered  the  domain  of  general  constitutional  and  commercial  law^  as  well 
as  the  narrower  field  of  Federal  jurisprudence,  the  utility  of  this  work  is  by 
no  means  restricted  to  Federal  practitioners. 

WALTER  MAUNS  ROSE. 
San  Francisco,  August,  1899. 


»       4 


•  '   ''. 


^  -   • 


NOTES 

ONTBX 


UNITED  STATES  REPORTS- 


II  DALLA&. 


2  DalL  401, 1 L.  Ed.  433,  WEST  ▼.  BABNES. 

Wilt  of  error  to  Supreme  Court  must  issue  from  clerk  of  tbat  court. 
Distinguished  in  Mussina  y.  Cavazos,  6  Wall.  357,  18  L.  Ed.  811,  act  of 
1792  changed  rule  and  authorized  its  issuance  by  Circuit  Court,  clerks; 
Cotter  V.  Alabama  G.  S.  R.  Co.,  61  Fed,  748,  holding  Circuit  Court  of 
Appeals  may  amend  writ  of  error  by  affixing  seal. 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  B.  A.  835. 

2  DalL  401,  1  L.  Ed.  433,  VANSTOFHOBST  y.  MABYItAND. 

Motion  for  commission  to  examine  witnesses  in  foreign  country  should  name 
commissioners. 

Cited  in  Chisholm  v.  Georgia,  2  Dall.  429, 1  L.  Ed.  445,  as  instance  where 
State  voluntarily  appeared  before  Supreme  Court,  and  discussing  right  to 
compel  appearance. 

2  Dall.  402-409, 1  L.  Ed.  433„aEOBaiA  y.  BBAILSFOBD. 

A  State  by  its  Ooyemor,  although  not  a  party  to  an  action  in  the  lower 
court,  may  properly  apply  to  Supreme  Court  for  injunction  against  payment  of 
eziocution  moneys  to  claimant  until  its  own  claim  thereto  is  adjudicated. 

Approved  in  State  v.  Huston,  21  Okl.  785,  786,  97  Pac.  983,  holding 
Governor  had  power  to  institute  suit  in  name  of  State;  cited  as  instance 
of  exercise  of  original  jurisdiction  by  Supreme  Court*^here  State  a  party, 
in  New  Jersey  v.  New  York,  5  Pet.  288,  8  L.  Ed.  128,  Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  294,  295,  32  L.  Ed.  244.  245,  8  Sup.  Ct.  1376,  1377,  Cali- 
fornia V.  Southern  Pacific  Co.,  157  U.  S.  258,  39  L.  Ed.  694,  16  Sup.  Ct.  603, 
deciding  other  questions  as  to  such  jurisdiction. 

Whenever  a  State  is  a  party.  Supreme  Court  has  exclusiye  Jurisdiction. 
Denied  in  Texas  v.  Lewis,  12  Fed.  3,  14  Fed.  66,  holding  alien  defendant 
may  remove  suit  by  State  to  Federal  court ',  State  ex  rel.  v.  Doyle,  40  Wis. 

^-1  (1) 


•    a 


2  DaU,  40a-^r-. ' '"       NOTES  ON  U.  S.  REPORTS. 


•  • 


200,  holding  inferior  Federal  court  cannot  oust  jurisdiction  of  State  court 
.\  -^vhelrer  State  a  party. 


•  • 


To  support  preliminary  injuaetion,  W^  must  show  probable  right,  and  prob- 
able danger  that  right  would  be  defeated  unless  injunction  granted. 

Approved  in  Camors-McConnell  Co.  v.  McConnell,  140  Fed.  418,  enjoining 
defendant  from  violating  contract  not  to  engage  in  certain  business;  Hoy 
V.  Altoona  etc.  Oil  Co.,  136  Fed.  485,  granting  preliminary  injunction  where 
recoveiy  of  shares  of  stock  alleged  to  have  been  obtained  through  fraud ; 
Harriman'  v.  Northern  Sec.  Co.,  132  Fed.  478,  granting  preliminary  injunc- 
tion to  prevent  violafion  of  anti-trust  act  by  merger  of  corporations  in 
new  corporation;  Denver  &  R.  G.  R.  Co.  v.  United  States,  124  Fed.  161,* 
restraining  railroad  from  cutting  timber  on  government  land:  Egbert  v. 
Greenberg,  100  Fed.  450,  enjoining  infringement  of  racing  chart  copyright ; 
Sanitary  Reduction  Works  v.  California  Reduction  Works,  94  Fed.  697, 
granting  preliminary  injunction  against  removal  of  garbage  outside  city 
limits;  Southern  Pac.  Co.  v.  Earl,  82  Fed.  691,  48  U.  S.  App.  719,  where 
injunction  granted;  Branch  Turnpike  Co.  v.  Supervisors  of  Yuba  Co.,  13 
Cal.  190,  where  denied;  Blount  v.  Societe  Anon,  etc.,  53  Fed.  101,  6  U.  S. 
App.  335,  where  granted  in  patent  case;  Overweight  etc.  Co.  v.  Cahill 
etc.  Co.,  86  Fed.  339,  where  denied;  Read  v.  Dews,  Charlt.  (Ga.)  363,  . 
denying  conditionally  a  motion  to  dissolve ;  Binney's  Case,  2  Bland  Ch.  104, 
where  injunction  dissolved;  Salmon  v.  Clagett,  3  Bland  Ch.  162,  where  in- 
junctioji  continued;  Newton  v.  Levis,  79  Fed.  718,  49  U.  S.  App.  271, 
amplifying  rule  and  affirming  allowance  of  injunction  by  lower  court; 
Allison  V.  Corson,  88  Fed.  584,  allowing  temporary  injunction. 

Temporary  injunction  may  issue  to  restrain  payment  of  %ebt  confiscated 
until  rightful  payee  is  determined  at  law. 

Approved  in  Love  v.  Atchison  etc.  Ry.  Co.,  186  Fed.  332,  107  C.  C.  A. 
403,  upholding  temporary  injunction  against  enforcing  statute  lowering 
railway  rates;  City  of  Grand  Rapids  v.  Warren  Bros.  Co.,  196  Fed.  895, 
116  C.  C.  A.  454,  upholding  preliminary  injunction  to  restrain  infringement 
of  patent;  Wilmington  City  Ry.  Co.  v.  Taylor,  198  Fed,  198,  upholding 
preliminary  injunction  against  enforcing  order  reducing  car  fares;  Irwin 
V.  Dixion,  9  How.  29,  IS'  L.  Ed.  84,  where  the  legal  question  was  as  to  pub- 
lic rights  in  alleged  highway;  Western  U.  Tel.  Co.  v.  Union  etc.  Ry.,  1 
McCrary,  565,  3  Fed.  430,  where  question  of  validity  of  contract  had  to  be 
determined  before  the  propriety  of  granting  perpetual  injunction  against 
its  violation  could  be  decided ;  Thompson  v.  Carr,  5  N.  H.  515,  confiscation 
act  of  1778,  vested  ifi  State  all  property  of  persons  named  in  act. 

Distinguished  in  Nenn  v.  Blackstone  B.  &  L.  Assn.,  149  Mo.  84,  50  S.  W. 
439,  holding  receiver  of  insolvent  corporation  may  recover  its  property 
which  has  been  fraudulently  conveyed  by  debtor ;  La  Mothe  v.  Fink,  8  Bliss. 
497,  Fed.  Cas.  8032,  where  injunction  was  held  improper  because  a  remedy 
at  law. 

State  suing  in  Supreme  Court  may  properly  do  so  by  Oovemor  ia  behalf 
of  State. 


3  HAYBURN'S  CASE.  2  Dall.  409-414 

Cited  in  Chisholm  y.  Georgia,  2  Dall.  452,  1  L.  Ed.  454,  in  suit  against 
State  process  may  properly  be  served  upon  Grovernor  and  attorney  general ; 
Grovemor  of  Georgia  v.  Madrazo,  1  Pet.  122,  7  L.  Ed.  79,  In  re  Ayers,  123 
U.  S.  488,  31  L.  Ed.  224,  Kentucky  v.  Dennison,  24  How.  96,  16  L.  Ed. 
725,  and  Western  etc.  Co.  v.  Henderson,  68  Fed.  591,  holding  suit  by 
or  against  Governor  virtue  officii,  deemed  suit  by  or  against  State  itself; 
dissenting  opinion  in  McNutt  v.  Bland,  2  How.  27,  11  L.  Ed.  166,  arguing 
tbat  suit  there  was  by  Governor  as  private  citizen;  dissenting  opinion  in 
Florida  v.  Georgia,  17  How.  500,  15  L.  Ed.  197,  arguing  that  a}4>earance 
by  United  States  attorney  general  in  suit  between  States  made  the  United 
States  a  party;  State  ex  rel.  Drake  v.  Doyle,  40. Wis.  205,  denying  Federal 
court's  jurisdiction  to  enjoin  state  officer  from  revoking  license  of  foreign 
corporation;  dissenting  opinion  in  Henry  v.  State,  87  Miss.  94,  39  South. 
884,  majority  holding  under  Constitution  Governor  cannot  sue  in  name  of 
State. 

2  Dall.  409^14, 1  li.  Ed.  436,  HAYBUBN'8  CASE. 

Act  of  1792,  enjoining  Circuit  Court  to  examine  pension  dainifl  imposes 
ncmjiidlcial  functions. 

Approved  in  United  States  v.  Evans,  213  U.  S.  301,  23  L.  Ed.  805,  29 
Sup.  Ct.  507,  holding  where  Supreme  Court  could  not  on  appeal  affect 
judgment,  hearing  and  deciding  case  as  moot  case  to  establish  rule  was 
not  exercise  of  judicial  power;  Muskrat  v.  United  States,  219  U.  S.  352, 
55  L.  Ed.  248,  31  Sup.  Ct.  250,  holding  Congress  could  not  provide  that 
suit  be  brought  in  Court  of  Claims  with  appeal  to  Supreme  Court  to 
test  constitutionality  of  prior  acts  of  Congress;  District  of  Columbia  v. 
Eslin,  183  U.  S.  66,  46  L.  Ed,  86,  22  Sup,  Ct.  18,  holding  Supreme  Court 
has  no  jurisdiction  over  appeal  from  Court  of  Claims  where  pending  appeal 
act  giving  latter  court  jurisdiction  was  repealed;  United  States  v.  E.  I. 
Du  Pont  De  Nemours  &  Co.,  188  Fed.  155,  holding  court  would  not  super- 
vise new  conditions  in  recreation  of  combination  dissolved  as  in  restraint 
of  trade  as  such  act  is  administrative;  State  v.  Barker,  116  Iowa,  109,  89 
N.  W.  208,  holding  act  authorizing  courts  to  appoint  trustees  of  water- 
works in  cities  of  first  class  invalid;  State  v.  Brill,  100  Minn.  508,  10 
Ann.  Cafl.  425,  111  N.  W.  643,  holding  void  statute  requiring  judges  of  Dis- 
trict Court  to  appoint  board  of  control;  City  of  Zdnesviile  v.  Zanesville 
Tel.  etc.  Co.,  63  Ohio  St.  454,  59  N.  E.  110,  holding  Ohio  Rev.  Stats.,  §  3461, 
iniiK>ses  legislative  functions  on  courts;  In  re  Opinion  of  the  Judges,  25 
Okl.  77,  105  Pac.  325,  holding  void  statute  requiring  justices  of  Supremo 
Court  to  act  as  advisers  to  Governor;  Sabre  v.  Rutland  R.  Co.,  86  Vt. 
379,  Ann.  Gas.  1915C,  1269,  85  Atl.  707,  holding  functions  of  court  could 
not  be  conferred  on  railroad  commission;  In  re  Macfarland,  30  App.  D.  C. 
383,  holding  void  act  of  Congress  requiring  Supreme  Court  of  District 
of  Columbia  to  fix  value  of  gas  plant;  dissenting  opinion  in  Sinking  Fund 
Comrars.  etc.  v.  George  etc.,  104  Ky.  285,  47  S.  W.  786,  majority  hold- 
ing I^slatnre  may  appoint  officers;  United  States  v.  Ferreira,  13  How. 
49^  50,  14  L.  Ed.  46,  holding  decision  of  a  territorial  judge  directed  by 


2  DalL  416  NOTES  ON  U.  S.  REPORTS.  4 

Congress  to  perform  similar  duties,  not  judicial  and,  therefore,  not  appeal- 
able; Gordon  v.  United  States,  117  U.  S.  703,  holding  act  inyalid  allow- 
ing appeals  to  Supreme  Court  from  Court  of  Claims;  United  States  y. 
Waters,  133  U.  S.  213,  SS  L.  Ed.  595,  10  Sup.  Ct.  250,  holding  allowance 
of  counsel  fees  to  district  attorney  by  District  Court  a  judicial  act  and 
not  subject  to  reversal  by  the  attorney  general;  In  re  Pacific  Ry.  Comsn., 
12  Sawy.  586,  32  Fed.  258,  holding  void  provision  of  act  creating  Pacific 
railway  commission,  which  authorized  courts  to  aid  in  its  investigations; 
In  re  Interstate  Commerce  Comsn.,  53  Fed.  479,  holding  invalid  provision 
authorizing  Circuit  Courts  to  make  orders  enforcing  subpoenas  issued  by 
interstate  commerce  commission)  Ex  parte  Riebeling,  70  Fed.  311,  314, 
315,  declaring  invalid  act  requiring  circuit  judges  to  certify  to  secretary 
of  the  treasury  value  of  services  of  informer  against  smugglers;  Ex  parte 
Griffiths,  118  Ind.  84,  10  Am.  St.  Rep.  108,  20  N.  E.  513,  annulling  statute 
requiring  judges  to  make  syllabi  of  their  decisions;  Auditor  v.  Atchison, 
etc.  R.  R.,  6  Kan.  508,  7  Aju.  Rep.  579,  annulling  statute  delegating  duty 
of  assessing  property  to  Supreme  Court;  In  re  Senate,  10  Minn.  78,  declar- 
ing void  act  requiring  judges  to  furnish  opinions  on  constitutional  ques- 
tions to  senate  or  house  on  demand ;  Taylor  v.  Place,  4  R.  I.  333,  334,  357, 
358,  holding  legislative  attempt  to  open  a  judgment  and  permit  amendment 
of  pleadings,  a  judicial  act  and  'Void;  Bates  v.  Kimball,  2  D.  Chip.  90, 
annulling  legislative  act  allowing  appeal  in  civil  case  after  prescribed  time ; 
dissenting  opinion  in  Commissioners  of  Sinking  Fun<f  v.  George,  47  S.  W. 
786,  majority  upholding  statute  authorizing  legislature  to  appoint  peni- 
tentiary commissioners. 

Cited  as  instance  where  court  refused  to  recognize  validity  of  act  of 
Congress,  in  Emerick  v.  Harris,  1  Binn.  422,  holding  that  courts  may  de- 
clare act  invalid;  United  States  v.  Williams,  28  Fed.  Cas.  616,  upholding 
embai^o  laws.  » 

Distinguished  in  Interstate  Com.  Comsn.  v.  Brimson,  154  U.  S.  481,  484, 
38  L.  Ed.  1058,  1060,  14  Sup.  Ct.  1134,  1135,  holding  act  of  Congress  au- 
thorizing Circuit  Courts  to  use  their  process  in  aid  of  inquiries  before  the 
interstate  commerce  commission  valid,  and  not  a  delegation  of  nonjudicial 
functions  to  that  court;  Kentucky  etc.  Co.  v.  Louisville  etc.  R.  R.,  37 
Fed.  614,  affirming  validity  of  provision  making  findings  of  that  commis- 
sion prima  facie  evidence  in  Federal  courts;  Striker  v.  Kelly,  7  Hill,  23, 
27,  farming  statute  respecting  New  York  streets  authorizing  the  muni- 
cipality to  apply  to  Supreme  Court  for  appointment  of  commissioners  of 
estimate  and  assessment;  dissenting  opinion  in  In  re  Macfarland,  30  App. 
D.  C.  397,  holding  acts  required  were  judicial  in  nature. 

Miscellaneous.  Cited  in  Valarino  v.  Thompson,  28  Fed.  Cas.  866,  iu 
reference  to  rule  7  of  Supreme  Court  stated  in  2  Dall.  413. 

2  DalL  415,  II..  Ed.  438,  08WAIJ>  ▼.  STATE  OF  NEW  TOSK. 

Order  that  defendant  State  appear  in  the  aboye-entltled  action  hy  niUEt 
term  day  on  penalty  of  judgment  by  default. 

Cited  to  point  that  reason  State  cannot  be  sued  is  not  because  of  non- 
liability, but  want  of  tribunal  competent  to  adjudge  it  in  Coster  v.  Mayor 


5  NOTES  ON  U.  S.  REPORTS.  2  DaU.  415-480 

etc.,  43  N.  Y.  408;  as  instanee  of  suit  against  a  State  in  New  Jersey  v. 
New  York,  5  Pet.  288,  8  L.  Ed.  129. 

2  DalL  415-^19, 1  la.  Ed.  438,  OEOBGIA  ▼.  BBAIL8F0BD. 

Injunction  continued  until  next  term,  to  be  then  dissolved  unless  Georgia 
lutf  begun  action  at  law  for  tbe  money  confiscated. 

Approved  in  States  v.  Huston,  21  Okl.  786,  97  Pac.  984,. holding  Governor 
could  institute  suit  on  behalf  of  State;  State  v.  Frost,  113  Wis.  655,  89 
N.  W.  923,  granting  removal  of  injunction  against  Federal  receiver;  cited 
in  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  295,  32  L.  Ed.  245,  8  Sup.  Ct. 
1376,  and  California  v.  Southern  Pacific  Co.,  157  TJ.  S.  259,  39  L.  Ed.  694, 
15  Sup.  Ct.  603,  as  instance  of  exercise  of  original  jurisdiction  of  Supreme 
Court  where  State  a  party;  Thompson  v.  Carr,  5  N.  H.  515,  confiscation, 
act  of  1778,  vested  in  State  all  property  of  persons  named  in  act;  to 
point  that  original  jurisdiction  of  Supreme  Court  was  deemed  exclusive 
by  early  cases,  State  ex  rel.  Drake  v.  Doyle,  40  Wis.  200,  denying  right 
of  inferior  Federal  court  to  oust  State  court  of  jurisdiction  where  State 
a  party;  to  point  that  injunction  will  issue  only  upon  showing  the  prob- 
able right  and  probable  injury  in  Read  v.  Dews,  Charlt.  363. 

2  BaU.  419-480,  1  L.  Ed.  440,  OHISHOLM  V.  GEOBGIA. 

Originally  State  was  suable  in  the  Supreme  Co/art  by  citlsen  of  another 


Approved  in  South  Dakota  v.  North  Carolina,  1&2  U.  S.  315,  320,  329, 
332,  48  L.  Ed.  459,  462,  466,  467,  24  Sup.  Ct.  274,  277,  280,  281,  uphold- 
ing Supreme  Court's  jurisdiction  over  action  by  one  State  against  another 
to  ^nforee  payment  of  bonds  of  such  other  State  which  are  specifically 
secured  by  shares  of  stock  belonging  to  debtor  State,  by  ordering  fore- 
closure of  security;  Smith  v.  Reeves,  178  U.  S.  446,  447,  44  L.  Ed.  1145, 
20  Sup.  Ct.  923,  upon  question  of  jurisdiction  of  Federal  courts  over  suit 
by  Federal  corporation  against  State;  Governor  v.  Madrazo,  1  Pet.  122, 

7  L.  Ed.  79,  holding  Federal  courts  without  jurisdiction  under  eleventh 
amendment  to  try  ia  libel  for  certain  moneys  and  slaves  in  the  possession 
of  the  State  government  of  Georgia;  New  Jersey  v.  New  York,  5  Pet.  289, 

8  L.  Ed.  129,  affirming  jurisdiction  of  suits  between  two  States,  and  la}'- 

ing  down  various  rules  of  practice  governing  such  suits;  Briscoe  v.  Bank 

etc.  of  Kentucky,  11  Pet.  321,  9  L.  Ed.  734,  holding  that  bills  of  credit 

of  defendant  bank  were  not  issued  by  State  because  bank  could  be  sued 

and  State  could  not;  dissenting  opinion  in  Florida  v.  Georgia,  17  How. 

519,  524,  15  L.  Ed.  193,  194,  majority  holding  that  United  States  may 

intervene  in  boundary  suit  between  two  States  upon  allegation  that  Federal 

territory  is  involved;  Kentucky  v.  Dennison,  24  How.  96,  16  L.  Ed.  725, 

holding  Supreme  Court  has  original  jurisdiction  of  suits  between  States     / 

without  any  enabling  act  of  Congress;  United  States  v.  Lee,  106  U.  S. 

207,  27  L.  Ed.  177,  1  Sup.  Ct.  249,  afiftrming  Lee  v.  Kaufman,  3  Hughes, 

b^,  95,  137,  Fed.  Cas.  8191,  upholding  a  suit  against  oflftcers  of  Federal 

government ;  New  Hampshire  v.  Louisiana,  108  U.  S.  86,  91,  27  L.  Ed.  660, 


\ 


2  Dall.  419-480  NOTES  ON  U.  S.  REPORTS.  6 

662,  2  Sup.  Ct.  180,  184,  reviewing  history  of  eleventL  amendment,  and 
holding  that  one  State  might  not  sue  another  as  assignee  of  debts  due 
to  certain  of  its  citizens;  Ames  v.  Kansas,  111  U.  S.  466,  28  L.  Ed.  489, 
2  Sup.  Ct.  445,  to  point  that  original  jurisdiction  of  Supreme  Court  not 
an  exclusive  jurisdiction;  Wisconsin  v.  Pelican  Ins.  Co.,  127  XJ.  S.  289, 
298,  32  L.  Ed.  243,  246,  8  Sup.  Ct.  1374,  1378,  holding  that  Supreme  Court 
has  no  originalr  jurisdiction  of  suit  by  State  to  recover  penalty  against  a 
foreign  corporation  adjudged  by  its  domestic  courts;  Buckner  v.  Street, 
1  Dill.  259,  Fed.  Cas.  2098,  remarking  that  eleventh  amendment  was  given 
retrospective  operation  in  holding  that  thirteenth  amendment  retroacted 
to  invalidate  previous  slave  contracts;  dissenting  opinion  in  Baltimore 
etc.  R.  R.  V.  Allen,  17  Fed.  177,  majority  upholding  judgment  awarding 
injunction  against  State  officers,  on  the  ground  that  it  was  really  a  suit 
against  a  State;  Brown  Univ.  v.  Rhode  Island  College,  56  Fed.  58,  deny- 
ing jurisdiction  of  Circuit  Court  over  injunction  proceedings  against  State 
treasurer  respecting  State  school  lands,  because  really  a  suit  agaihst  the 
State;  Thebo  v.  Choctaw  Tribe,  66  Fed.  375,  27  U.  S.  App.  657,  applying 
principle  of  nonsuability  of  sovereign  State  to  Indian  nation;  Western 
XJ.  Tel.  Co.  V.  Henderson,  68  Fed.  590,  holding  injunction  |)roceeding.s 
against  State  auditor  to  restrain  enforcement  of  taxation  law  alleged  to 
be  unconstitutional,  not  suit  against  State;  Smith  v.  Racklif^fe,  87  Fed. 
968,  .holding  suit  against  State  treasurer  to  recover  taxes  paid,  a  suit 
against  a  State;  Ex  parte  State,  52  Ala.  236,  23  Am.  Bep.  572,  holding 
repeal  of  law  authorizing  suit  against  State  retroacted  upo^  pending  suits 
to  oust  jurisdiction ;  filoxham  v.  Florida  etc.  R.  R.,  35  Fla.  713,  17  South. 
918,  holding  suit  against  State  officers  for  recovery  of  money  paid  as 
taxes,  a  suit  against  a  State ;  Lodor  v.  Baker  etc.  Co.,  39  N.  J.  L.  50, 
holding  that  State  treasurer  cannot  be  garnishe^d  as  to  moneys  of  non- 
resident debtor  in  his  hands;  State  ex  rel.  Drake  v.  Doyle,  40  Wis.  200, 
201,  205,  denying  jurisdiction  of  Federal  Circuit  Court  over  suit  against 
State  officer  in  his  official  capacity  and  affecting  matter  of  State  right, 
because  a  suit  against  a  State;  Board  of  Commrs.  v.  Walling,  Dall.  (Tex.) 
526,  holding  that  certain  act  as  to  establishment  of  land  claims  authorized 
suit  against  State  and  that  State  might  thus  waive  its  nonsuability;  Padel- 
ford  V.  Mayor  etc.,  14  Ga.  478,  479,  giving  the  history  of  the  principal 
case  at  length;  State  v.  Young,  29  Minn.  531,  9  N.  W.  743,  holding  that  an 
executory  contract  of  a  State,  whose  performance  rests  with  subsequent 
legislatures,  is  a  valid  contract,  although  not  specifically  enforceable ;  Briggs 
V.  Light-Boats,  11  Allen,  176,  denying  right  to  put  a  lien  upon  a  light- 
boat  belonging  to  the  United  States;  Piqua  Branch  Bk.  v.  Hnoup,  6  Ohio 
St.  375,  383,  affirming  the  appellate  jurisdiction  of  Federal  Supreme  Court 
in  certain  matters,  over  the  State  courts;  Houston  v.  State,  98  Wis.  487, 
74  N.  W.  43,  holding  statute  permitting  suits  against  State  contemplated 
only  suits  upon  contract  and  not  for  torts  of  State  officials;  Garner  v. 
Worth,  122  N.  C.  252,  29  S.  £.  364,  refusing  mandamus  to  compel  payment 
of  money  claimed  as  due  from  the  State;  Smith  v.  Rackliffe,  87  Fed.  968, 
holding  action  against  State  officer  to  recover  taxes  in  effect  an  action 
against  the  State;  State  v.  Curran,  12  Ark.  343,  holding  constitutional  pro- 


7  CHISHOLM  V.  GEORGIA.  2  Dall.  419-480 

vision  authorizing  snit  against  State  should  be  liberally  construed;  Jim  v. 
State,  3  Mo.  149|  remarking  that  principal  case  seems  to  have  proceeded  on 
notion  that  legislation  was  necessary  to  give  powers  ^f  Supreme  Court 
activity;  Mayor  v.  Bailey,  2  Denio,  447,  holding  that  government  by  be- 
coming an  incorporator  lays  aside  its  nonsuable  sovereign  character;  Gar- 
land V.  Davis,  4  How.  149,  11  L.  Ed.  915,  holding  that  public  agents  are 
not  usually  liable  on  contracts  made  in  behalf  of  their  principals;  dissent- 
ing opinion  in  Atlantic  etc.  R.  R.  Co.  v.  Dortch,  124  N.  C.  676,  33  S.  E. 
159,  construing  acts  concerning  board  of  internal  improvements ;  dissenting 
opinion  in  SUte  Prison  of  N.  C.  v.  Day  (Day's  Case),  124  N.  C.  388,  32 
S.  £.  756,  46  L.  R.  A.  295,  arguendo. 

Distinguished  in  Farmers'  Nat.  Bank  v.  Jones,  105  Fed.  462,  holding 
Federal  courts  have  no  jurisdiction  of  suits  i^ainst  State  officers;  dis- 
senting opinion  United  States  v.  Lee,  106  U.  S.  242,  27  L.  Ed.  189,  1  Sup. 
Ct.  279,  as  not  in  point  on  question  of  suability  of  Federal  government. 

Criticised  in  Hans  v.  Louisiana,  134  U.  S.  11,  12,  13,  16,  18,  21,  83  L.  Ed. 
846,  847,  848,  849,  10  Sup.  Ct.  505,  506,  507,  508,  509,  affirming  s.  c,  24 
Fed.  67,  holding  that  State  cannot  be  sued  in  Federal  Circuit  Court  by 
its  own  citizen  upon  suggestion  that  Federal  question  is  involved. 

Federal  Jurisdiction  In  admiralty. 

Approved  in  Levin  v.  United  States,  128  Fed.  830,  holding  Congress  may 
empower  State  courts  to  adnvit  qualified  aliens  to  citizenship;  People  v. 
Tyler,  7  Mich.  269,  270,  74  Am.  Dec.  716,  denying  that  Federal  admiralty 
jurisdiction  covered  the  great  lakes;  in  Keating  v.  Spink,  3  Ohio  St.  107, 
62  Am.  Dec.  216,  affirming  that  State  and  Federal  courts  have  joint  juris- 
diction oy^r  inland  rivers;  dissenting  opinion  in  Waring  v.  Clark,  5  How. 
489,  12  L.  Ed.  249,  majority  affirming  the  admiralty  jurisdiction  of  waters 
within  limits  of  a  county. 

Sapreme  Oouit's  jurisdiction  of  suits  by  a  State  against  citizens  of  another. 
Approved  in  State  of  Kansas  v.  State  of  Colorado,  206  U.  S.  82,  83,  51 
L.  Ed.  968,  27  Sup.  Ct.  655,  holding  Supreme  Court  had  jurisdiction  to 
determine  suit  between  states  relating  to  river  control;  Ex  parte  Young, 
209  U.  S.  150,  14  Ann.  Oas.  764,  13  L.  R.  A.  (N.  S.)  932,  52  L.  Ed.  725, 
28  Sup. '  Ct.  441,  holding  eleventh  amendment  did  not  deprive  Supreme 
Court  of  jurisdiction  of  suit  by  stockholder  to  enjoin  directors  of  corpora- 
tion from  complying  with  provisions  of  state  statute  alleged  unconstitu- 
tional; St.  Louis  etc.  R.  Co.  v.  Hadley,  161  Fed.  423,  holding  eleventh 
amendment  did  not  deprive  Supreme  Court  of  jurisdiction  of  suit  to  en- 
join attorney  general  and  railroad  commission  of  State  from  enforcing 
statute  regulating  railroad  rates;  State  v.  Southern  Ry.  Co.,  145  N.  C. 
525,  13  L.  R.  A.  (N.  8.)  966,  59  S.  E.  580,  holding  under  eleventh  amend- 
ment Federal  court  could  not  enjoin  prosecution  in  State  court  of  criminal 
offense  against  State;  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  289,  32 
L.  Ed.  243,  8  Sup.  Ct.  1374,  in  arguing  that  Supreme  Court  would  not 
entertain  such  suit  when  for  the  enforcement  of  a  State's  domestic  penal 
law. 


2  Dall.  41»-480  NOTES  ON  U.  S.  REPORTS.  8 

Federal  JivUdary  posiessei  only  thftt  Jurisdiction  delegated  to  it  by  Con- 
stitution. .    • 

Approved  in  Clark  v.  Allaman,  71  Kan.  216,  80  Pac.  575,  determining  ap- 
plicability of  common-law  rules  relating  to  riparian  rights ;  Floyd  v.  Quinn, 
24  R.  I.  150,  52  Atl.  881,  upholding  State  judiciary  act  of  1893 ;  In  re 
Barry,  136  U.  S.  607,  608,  617,  84  L.  Ed.  507,  510,  42  Fed.  120,  121,  127, 
Fed.  Gas.  1059,  holding  that  Circuit  Courts  have  no  additional  common-law 
jurisdiction;  In  re  Metzger,  17  Fed.  Cas;  234,  ai^endo;  Robertson  v.  Bald- 
win, 165  U.  S.  279,  41  L.  Ed.  716,  upholding  act  of  Congress  authorizing  jus- 
tices of  the  peace  to  issue  warrants  for  apprehension  of  deserting  seamen ; 
United  States  v.  New  Bedford  Bridge,  1  Wood.  &  M.  408,  Fed.  Cas.  16,867, 
holding  indictment  would  not  lie  in  Federal  court  for  obstructing  navigable 
river  in  absence  of  act  of  Congress  prohibiting  it;  Wilson  v.  Jordan,  124 
N.  C.  722,  33  S.  E.  147,  arguendo. 

Jurisdiction  of  Supreme  Court  of  ''controversies"  where  State  a  party. 

Approved  in  Muskrat  v.  United  States,  219  U.  S.  357,  55  L.  Ed.  250,  31 
Sup.  Ct.  260,  holding  void  act  requiring  Supreme  Court  on  appeal  from 
Court  of  Claims  to  determine  constitutionality  of  certain  prior  acts  of 
Congress,  on  ground  "controversy"  was  not  involved;  South  Dakota  v. 
North  Carolina,  192  U.  S.  318,  48  L.  Ed.  461,  24  Sup.  Ct.  276,  upholding 
Supreme  Court's  jurisdiction  over  action  by  one  State  against  another  to 
enforce  payment  of  bonds  of  such  other  State  which  are  specifically  se- 
cured by  shares  of  stock  belonging  to  debtor  State,  by  ordering  foreclositre 
of  security;  United  States  v.  Lenore,  207  Fed.  869,  holding  "case"  includes 
naturalization  proceeding,  so  that  errors  therein  are  reviewable  by  Circuit 
Court  of  Appeals ;  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  298,  82  L.  Ed. 
;  846,  8  Sup.  Ct.  1378,  holding  Supreme  Court  would  not  take  original  juris- 
diction of  suit  by  State  to  enforce  its  domestic  penal  law ;  In  re  Pacific  Ry. 
Comsn.,  12  Sawy.  582,  32  Fed.  255,  holding  that  Federal  courts  cannot  be 
required  to  aid  investigations  of  commission  beyond  matters  over  which 
Constitution  gives  it  jurisdiction ;  King  v.  McLean  Asylum,  64  Fed.  336,  21 
U.  S.  App.  481,  holding  that  petition  for  habeas  corpus  by  citizen  of  one 
State  for  release  of  citizen  of  another,  a  controversy  giving  Federal  court 
jurisdiction ;  State  v.  Frost,  113  Wis.  654,  89  N.  W.  922,  removing  suit  to 
enjoin  Federal  receiver. 

When  public  officers  are  subject  to  suit  although  they  assume  to  be 
acting  for  a  State  or  the  United  States.    Note,  108  Am.  St.  Rep.  832. 

When  action  against  officers  deemed  against  State.    Note,  44  L.  R.  A. 
(N.  S.)  191. 

The  sovereignty  of  nation  is  in  people  of  nation,  and  residuary  sovereignty 
of  each  State  in  its  people  who  are  joint  tenants  thereof. 

Cited  in  Douglass  v.  Stephens,  1  Del.  Ch.  473,  construing  constitutional 
guaranty  of  rights  in  one  State  of  citizens  of  another;  dissenting  opinion 
in  McElvain  V.  Mudd,  44  Ala.  67,  majority  upholding  an  action  on  note 
for  purchase  money  of  slaves;  dissenting  opinion  in  Rohrbacher  v.  City  of 


9  CHISHOLM  V.  GEORGIA.  2  DaU.  419-480 

Jaekson,  51  Miss.  752,  discussing  conclusiveness  of  legislative  journals ;  dis- 
senting opinion  in  Ex  parte  Bushnell,  9  Ohio  St.  295,  297,  majority  uphold- 
ing fugitive  slave  laws;  Gifford  v.  Livingston,  2  Denio,  400,  arguendo. 

Bemedial  power  in  Constitution  is  to  be  liberally  construed. 
Cited  in  United  States  v.  Rhodes,  1  Abb.  52,  Fed.  Gas.  16,151,  to  the  civil 
rights  bill  and  thirteenth  amendment. 

Subpoena  issued  from  Supreme  Court  in  suit  against  State  may  be  served 
on  Ooyemor  and  attorney  general  of  such  State,  and  if  defendant  fail  to  appear  ^ 
platntiff  may  proceed  ex  parte. 

Cited  in  New  Jersey  v.  New  York,  3  Pet.  466,  7  L.  Ed.  473,  where  defend- 
ant State  failed  to  appear,  s.  c,  5  Pet.  289,  8  L.  Ed.  129,  laying  down 
various  other  rules  of  practice  in  such  cases ;  Rhode  Island  v.  Massachusetts, 
12  Pet.  761,  9  L.  Ed.  1275,  where  defendant,  after  appearing,  was  permitted 
to  withdraw;  Texas  v.  Steele,  57  Tex.  204,  a  suit  against  a  State;  Meri- 
wether V.  Bank  of  Hamburg,  Dudl.  L.  37,  holding  service  on  president  and 
cashier  of  corporation  sufficient;  United  States  v.  Lee,  106  U.  S.  206,  27 
*  L.  Ed.  176,  1  Sup.  Ct.  248,  discussing  reasons  why  the  United  States  is  not 
suable;  State  m.  Huston,  21  Okl.  785,  786,  97  Pac.  983,  984,  holding  Governor 
could  institute  suit  on  behalf  of  State;  dissenting  opinion  in  Henry  v. 
State,  87  Miss.  94,  95,  39  South.  884,  majority  holding  under  Constitution 
Governor  cannot  sue  in  name  of  State. 

Distinguished  in  Illinois  Cent.  R.  R.  Co.  v.  Adams,  180  U.  S.  38,  45  L,  Ed. 
414,  21  Sup.  Ct.  254,  holding  question  as  to  whether  suit  against  individual 
is  suit  against  State  within  eleventh  amendment  should  be  raised  by 
demurrer. 

Common  law  of  England  so  far  as  applicable  to  cLrcomstances  of  country 
is  in  force  in  tbe  United  States  except  wbere  controlled  by  legislation. 

Approved  in  State  v.  Akers,  92  Kan.  193,  Ann.  Cas.  1916B,  543,  140  Pac. 
646,  holding  strict  rule  of  common  law  that  only  tidal  streams  are  navigable 
not  part  of  common  law  of  Kansas. 

Bepublican  form  of  government  is  one  constructed  on  principle  that  supreme 
power  resides  in  body  of  people. 

Approved  in  Kiernan  v.  Portland,  57  Or.  471,  37  L.  R.  A.  (N.  S.)  832, 
112  Pac.  405,  and  SUte  v.  Board  of  Commrs.,  93  Kan.  412,  144  Pac.  244, 
both  upholding  initiative  and  referendum  laws. 

Extent  and  adoption  of  common  law.    Note,  Ann.  Gas.  1913E,  1232. 

Miscellaneous.  Cited  in  Hennessy  v.  Richardson  Drug  Co.,  189  U.  S. 
34,  47  L.  Ed.  698,  23  Sup.  Ct.  533,  discussing  questions  reviewable  where 
question  of  jurisdiction  on  ground  of  diversity  of  citizenship  is  certified; 
dissenting  opinion  in  Hill  v.  Atlantic  etc.  R.  Co.,  143  N.  C.  595,  9  L.  R.  A. 
(K.  S.)  606,  55  S.  E.  874,  referring  to  Justice  Iredell's  dissent  in  principal 
case. 


/ 


NOTES 

OKTHB 


UNITED  STATES  REPORTS. 


in  DALLAS. 

J 


3  Dall.  1-5,  1  I..  Ed.  483,  STATE  OF  aEOBOIA  V.  BBAII.8F0BD. 

ProTlnce  of  court  and  jnry.  ^ 

Accuracy  of  report  of  principal  case  was  doubted  in  United  States  v. 
Morris,  1  Curt.  57,  Fed.  Cas.  16,815,  court  saying  that  if  correctly  reported 
it  was  not  in  accordance  with  views  of  any  other  court. 

Jury  Bbould  not  have  Impressions  of  favor  for  one  party  or  otker. 

Cited  in  State  v.  Wheeling  etc.  Bridge  Co.,  13  How.  588,  14  L.  Ed.  279, 
court  presujnes  jury  would  do  equal  justice  between  citizens  of  their  own 
State,  and  another  State  or  its  citizens. 

Miscellaneous.  Cited  but  not  in  point  in  The  Anna,  Blatchf.  Pr.  339, 
Fed.  Cas.  400. 

3  DalL  6-16»  1  L.  Ed.  486,  GLASS  ▼.  THE  SIiOOP  BETSEY. 

Appeal  must  be  presented  to  court  or  Judge. 

Cited  in  Steamboat  New  England,  3  Sumn.  498,  Fed.  Cas.  10,151,  appeal 
lies  from  decree  of  a  District  Court  in  admiralty  except  to  next  term  of 
Circuit  Court;  Norton  v.  Rich,  3  Mason,  444,  Fed.  Cas.  10,362,  appeal  must 
be  taken  in  open  court  before  adjournment  sine  die  unless  a  different  period 
be  prescribed  by  court;  Merrill  v.  Petty,  16  Wall.  342,  21  L.  Ed.  499,  act 
relating  to  appeals  in  admiralty  was  taken  subject  to  limitations  as  to 
value  of  matter  in  dispute. 

District  Courts  possess  all  powers  of  Court  of  Admiralty. 

Approved  in  The  Paquette  Habana,  175  U.  S.  680,  44  L.  Ed.  321,  20 
Sap.  Ct.  292,  upholding  Supreme  Court's  admiralty  appellate  jurisdiction 
in  prize  cases  without  regard  to  amount  in  dispute;  Arnold  v.  Eastin,  116 
Ky.  699,  76  S.  W.  856,  recording  of  mprtgage  in  place  other  than  home 
port  of  vessel  does  not  impart  constructive  notice;  Juando  (Stoughton)  v. 
Taylor,  2  Paine,  670,  683,  Fed.  Cas.  7558,  and  The  Hiawatha,  Blatchf.  Pr.  7, 
Fed.  Cas.  6451,  both  discussing  question  of  jurisdiction  of  District  Courts 
in  prize  cases;  United  States  v.  Ames,  99  U.  S.  36,  25  L.  Ed.  297,  to  point 

(11) 


3  Dall.  6-16  NOTES  ON  U.  S.  REPORTS.  12 

that  prize  jurisdiction  was  involved  in  general  delegation  of  admiralty  and 
prize  jurisdiction;  The  Cargo  of  the  Emulous,  1  Gall.  573,  Fed.  Cas.  4479, 
where  court  considered  over  what  prizes  Admiralty  Court  had  jurisdiction 
as  prize  court;  Simpson  v.  Nadeau,  Conf.  N.  C.  264,  2  Am.  Dec.  635,  hold- 
ing question  of  prize  was  exclusively  of  admiralty  jurisdiction;  Penhallow 
V.  Doane,  3  Dall.  97,  108,  1  L.  Ed,  525,  530,  District  Court  had  jurisdiction 
of  libel  to  carry  into  execution  decree  of  Court  of  Appeals  in  prize  case 
after  latter  court  had  expired;  Jansen  v.  Brigantine  Magdalena,  Bee,  20, 
Fed.  Caa.  7216,  where  vessel  belonging  to  neutral  country  was  seized  by 
privateer;  Novion  v.  Hallett,  16  Johns.  346,  holding  that  no  action  at 
common  law  lies  for  an  illegal  capture  on  the  high  seas ;  1253  Bags  of  Rice, 
Blatchf.  Pr.  213)  Fed.  Cas.  10,535,  where  question  was  as  to  whether  cer- 
tain property  seized  was  lawful  prize;  The  Isabella  Thompson  v.  United 
States,  3  Wall.  162,  18  L.  Ed.  57,  holding  parties  were  entitled  to  decree 
of  restitution  and  damages  if  seizure  made  without  probable  feause ;  Slocum 
V.  Wheeler,  1  Conn.  447,  to  render  its  sentences  in  prize  cases  conclusive 
District  Court  must  have  had  jurisdiction:  L'Invincible,  1  Wheat.  243,  4 
L.  Ed.  82,  where  res  escapes  from  former  captor,  action  becomes  transitory 
and  follows  the  thing;  The  Anna,  Blatchf.  Pr.  339,  Fed.  Cas.  402,  where  it 
was  contended  that  district  attorney  in  prize  court  did  not  act  in  char- 
acter of  prosecuting  officer  in  court  of  law;  The  Admiral  v.  United  States, 
3  Wall.  612,  18  L.  Ed.  59,*  prior  to  act  of  March  3,  1863,  appeals  in  prize 
cases  were  directly  to  Supreme  Court;  Fay  v.  Montgomery,  1  Curt.  269, 
Fed.  Cas.  4709,  defense  that  a  vessel  was  captured  as  prize  of  war  does 
not  bar  libel  in  instance  side  of  court  for  marine  tort  in  seizing  vessel; 
The  City  of  Panama,  101  U.  S.  458,  25  L.  Ed.  1063,  libel  against  steamship 
to  recover  damages  for  personal  injuries;  Martins  v.  Ballard  and  Talbot, 
Bee,  55  Fed.  Cas.  9175,  a  libel  for  damages  for  trespass  upon  high  seas; 
The  Meteor,  17  Fed.  Cas.  180,  libel  for  breach  of  neutrality ;  The  Isabella, 
Browne,  98,  Fed.  Cas.  7100,  a  proceeding  in  rem,  to  recover  seamen's  wages ; 
dissenting  opinion  in  Root  v.  United  States,  9  Ct.  CI.  223,  holding  that 
court  could  not  make  expenses  of  sale  of  prize  property  a  charge  upon  the 
fund  for  defraying  expenses  of  suits  in  which  the  United  States  is  a  party ; 
The  United  States  v.  The  New  Bedford  Bridge,  1  Wood.  &  M.  455,  Fed.  Cas. 
15,867,  where  question  as  to  criminal  jurisdiction  of  the  Circuit  Court  was 
considered ;  The  Divina  Pastora,  4  Wheat.  66,  4  L.  Ed.  515,  where '  it 
was  said  principal  case  had  sometimes  been  criticised  as  involving  denial 
that  jurisdiction  of  prizes  belongs  exclusively  to  tribunals  of  captors; 
Brown  v.  The  United  States,  8  Cr.  137,  138,  3  L.  Ed.  514,  where  question 
was  whether  enemy's  property  on  land  at  the  commencement  of  hostilities 
could  be  seized  and  condemned;  Wheelwright  v.  Depeyster,  1  Johns.  481, 
8  Am.  Dec.  849,  holding  that  naked  sale  by  captor  even  of  property  pro- 
fessedly belonging  to  an  enemy  is  void;  In  re  Metzger,  17  Fed.  Cas.  234, 
affirming  rule  generally;  British •  Consul  v.  22  Pipes  of  Wine,  Bee,  180 
Fed.  Cas.  1900,  arguendo. 

Foreign  courts  cannot  be  instituted  witliin  United  States. 

Approved  in  Territory  v.  Delinquent  Tax  List,  3  Ariz.  91,  21  Pac.  894, 
holding  special  term  of  District  Court  has  no  jurisdiction  of  application 


13  UNITED  STATES  v.  HAMILTON.  3  Dall.  17-18 

for  judgment  for  delinquent  taxes,  though  it  was  next  teim  •held  after 
publication  of  delinquent  list  and  notice;  Noble  v.  Cullon,  44  Ala.  560, 
applying  the  principle  in  holding  that  the  rebel  governments  established 
in  Alabama  during  the  rebellion  were  not  legal  governments;  Ex  parte 
Bibb,  44  Ala.  153,  where  judgment  of  rebel  court  was  opened;  Guaranty 
Trust  Co.  V.  Green  Cove  R.  R.,  139  U.  S.  147,  85  L.  Ed.  120,  11  Sup.  Ct. 
516,  to  point  that  the  jurisdiction  of  any  court  may  be  inquired  into  where 
its  proceedings  are  relied  upon ;  Williamson  v.  Berry,  8  How.  641-,  12  L.  Ed. 
1190,  where  court  looked  into  jurisdiction  of  the  chancellor  of  New  York; 
Moch  V.  Virginia  etc.  Ins.  Co.,  4  Hughes,  119,  10  Fed.  706,  power  to  look 
into  jurisdiction  did  not  relieve  court  from  doctrine  of  res  judicata ;  Horau 
T.  Wahrenberger,  9  Tex.  321,  58  Am.  Dec.  147,  an  appeal  cannot  confer 
jurisdiction  that  court  a  quo  did  not  possess;  Bell  v«  Ohio  L.  &  T.  Co., 
1  Biss.  270,  Fed.  Cas.  1260,  priority  of^  jurisdiction  as  between  State  and 
United  States  courts  was  determined  by  issuance  of  process;  The  Divina 
Pastora,  4  Wheat.  66,  4  L.  Ed.  515,  citing  cases  on  jurisdiction  over  cap- 
tures; dissenting  opinion  in  McElvain  v.  Mudd,  44  Ala.  66,  as  to  rights 
which  are  inherent  in  sovereignty  which  is  an  essential  element  of  State 
authority;  The  Invincible,  2  Gall.  38,  40,  Fed.  Cas.  7054,  where  jurisdiction 
of  a  neutral  country  was  considered  and  court  said  authority  of  the  prin- 
cipal case  seemed  to  be  shaken  by  opinion  in  Hudson  v.  Guestier^  4 
Cranch,  293,  2  L.  Ed.  293 ,  s.  c,  6  Cranch,  281,  3  L.  Ed.  281. 

3  DalL  17-18,  1  L.  Bd.  490,  UNITED  STATES  ▼.  HAMILTON. 

Prisoner  charged  with  Ugh  treason  admitted  to  bail  upon  application  by 
liabeaa  corpus. 

Approved  in  Ex  parte  Moran,  144  Fed.  600,  Circuit  Courts  of  Appeals 
may  issue  habeas  corpus  within  respective  jurisdictions ;  Ex  parte  Burford, 

4  Cr.  449,  2  L.  Ed.  405,  issuing  writ  of  habeas  corpus;  Ex  parte  Tergcr, 
8  Wall.  98,  19  L.  Ed.  336,  holding  that  the  Supreme  Court  of  the  United 
States  could  by  the  writ  of  habeas  corpus  revise  the  decision  of  the  Circuit 
Court;  dissenting  opinion  in  Hyatt  v.  Allen,  64  C^l.  364,  discussing  power 
to  issue  writs  of  habeas  corpus ;  United  States  v.  The  New  Bedford  Bridge, 
1  Wood.  &  M.  440,  Fed.  Cas.  15,867,  where  jurisdiction  of  Federal  courts 
and  lowers  of  Congress  considered;  Ex  parte  Virginia,  100  U.  S.  343,  25 
L.  Ed.  678,  while  generally  writ  of  habeas  corpus  cannot  subserve  the 
purpose  of  writ  of  error,  yet  if  prisoner  is  held  without  authority,  au- 
thority of  court  will  be  examined  into;  Ex  parte  Watkins,  3  Pet.  207,  208, 
7  L.  Ed.  655,  where  court  refused  to  discharge  prisoner  held  under  judg- 
ment of  court  of  general  criminal  jurisdiction;  King  v.  McLean  Asylum, 
64  Fed.  334,  346,  347,  21  U.  S.  App.  481,  i>etition  by  citizen  of  one  State 
seeking  release  from  illegal  restraint  by  citizen  of  another  State;  Ex  parte 
Burford,  3  Cr.  449,  2  L.  Ed.  495,  holding  that  warrant  of  commitment  by 
justice  of  peace  must  state  good  cause  certain,  supported  by  oath;  In  re 
Kaine,  14  How.  130,  132,  146,  14  L.  Ed.  356,  357,  363,  where  eourt  refused 
to  release  prisoner  who  had  committed  an  assault  in  Ireland  and  who  was 
committed  by  the  commissioner  pending  order  of  President  of  United 
States;  In  re  Metzger,  5  How.  189,  191,  12  L.  Ed.  110,  holding  writ  of 


3Dall.l9-42  NOTES  ON  U.  S.  REPORTS.  14 

habeas  corpus  could  not  issue  to  review  decision  of  District  Court  commit- 
ting prisoner  to  custody  awaiting  order  of  President  to  deliver  him  to 
French  government;  dissenting  opinion  in  Ex  parte  Wells,  18  How.  317, 
15  L.  Ed.  426,  where  court  refused  to  discharge  prisoner  conditionally  par- 
doned; Ex  parte  Lange,  18  Wall.  166,  21  L.  Ed.  876,  prisoner  cannot  be 
both  fined  and  imprisoned  under  statute  conferring  power  ^o  fine  or  iki- 
prison;  Ex  parte  Watkins,  7  Pet.  572,  573,  8  L.  Ed.  788,  where  prisoner 
confined  under  sentence  of  fine  and  imprisonment  was  discharged;  In  re 
Barry,  42  Fed.  124,  Fed.  Cas.  1059  (opinion  of  Betts,  J.,  reprinted  in  136 
U.  S.  613,  34  L.  Ed.  509),  where  a  father  who  was  foreigner  attempted  to 
recover  his  children  by  writ  of  habeas  corpus;  Ex  parte  BoUman  and 
Swartwout,  4  Cranch,  100,  101,  103,  104,  2  L.  Ed.  663,  664,  following  rule ; 
Holmes  v.  Jennison,  14  Pet.  620,  10  L.  Ed.  622,  where  writ  of  error  to  an 
order  of  State  court  on  habeas  co^us  was  dismissed;  People  v.  Turner,  1 
Cal.  147,  52  Am.  Dec.  298,  where  question  was  whether  Supreme  Court  had 
power  to  issue  writs  of  mandamus;  In  re  MacDonald,  16  Fed.  Cas.  25,  26, 
affirming  federal  jurisdiction  to  issue  habeas  corpus;  cited  in  the  rules 
of  Supreme  Court  of  United  States  in  3  Dallas,  120, 1  L*  Ed.  535,  under  the 
order  that  all  evidence  on  motions  for  a  discharge  of  prisoner  upon  bail 
shall  be  by  way  of  deposition  and  not  viva  voce.  And  see  In  re  Fries, 
9  Fed.  Cas.  842. 

Criticised  in  dissenting  opinion  in  Ex  parte  Watkins,  7  Pet.  581,  8  L.  Ed. 
791,  majority  refusing  to  discharge  prisoner. 

Bail  in  capital  cases.    Note,  39  L.  R.  A.  (N.  S.)  759. 

Bemlssion  to  special  Circuit  Court. 

Cited  in  United  States  v.  Cornell,  2  Mason,  99,  100,  Fed.  Cas.  14,868, 
motion  for  special  session  comes  too  late  after  indictment  is  found  or  a 
trial  had  at  general  session;  Memorandum,  4  Craich  C.  C.  338,  Fed.  Cas. 
9411,  Circuit  Court  cannot,  at  special  session  for  criminal  causes,  try 
cause  which  was  pending  at  preceding  stated  session;  United  States  v. 
Insurgents,  26  Fed.  Cas.  499,  rejecting  motion  for  change  of  trial  to  special 
term. 

3  DaU.  19-42,  1  !■.  Ed.  491,  BINaHAM  ▼.  CABBOT. 

Bill  of  exceptions  is  conclusive. 

Applied  in  Gladden  v.  State,  12  Fla.  573,  if  grounds  of  objection  do  not 
appear  in  record  they  cannot  be  properly  considered;  Sloan  v.  Territory, 
6  N.  M.  86,  27  Pac.  418,  every  reasonable  intendment  ought  to  be  indulged 
in  favor  of  judgment. 

Presumed  that  Oovemor  of  Martinique,  in  signing  certificate,  acted  with 
antborlty. 

CitdH  in  Charles  Green's  Sons  v.  Salas,  31  Fed.  113,  where  there  was 
question  as  to  naturalization  of  citizen  in  foreign  country. 

Not  bound  to  deliver  verdict  tn  conformity  to  opinion  of  court. 

Cited  in  dissenting  opinion  in  Sharf  v.  XTHited  States,  156  U.  S.  158,  89 
L.  Ed.  381,  15  Sup.  Ct.  314,  where  court  in  prosecution  for  murder  in- 
structed jury  that  they  could  not  find  verdict  for  less  offense. 


16  UNITED  STATES  v.  LAWRENCE.  3  Dall.  4^-54 

Ciieiiit  Oonrt'B  Jnrisdlctloii  oTer  action  to  recoTor  ttom  public  agent  pro- 
ceeds ftom  lale  of  prize. 

Cited  in  Bierbower  v.  Miller,  30  Neb.  181,  where  there  was  motion  to 
remove  cause  to  Circuit  Court;  Brown  v.  Noyes,  2  Wood.  &  M.  79,  Fed. 
Cas.  2023,  where  there  was  declaration  for  money  had  and  received  and 
also  for  like  sum  for  goods  sold  in  the  usual  form;  Bank  of  the  United 
States  V.  Moss,  6  How.  37,  12  L.  Ed.  334,  to  point  that  money  counts  aver 
enough  to  give  Circuit  Court  jurisdiction  where  they  state  indebtedness 
and  promise  to  pay,  made  directly  to  plaintiffs,  though  there  is  no  all^a- 
tion  of  residence  in  different  States. 

lietten  by  public  agent  to  government  as  evidence. 

Approved  in  The  Emma  Silver  M.  Co.  v.  Park,  14  Blatchf.  418,  Fed. 
Cas.  4467,  where  letters  written  to  codefendant  during  time  when  scheme 
charged  was  being  concocted  were  admitted  in  evidence;  The  Meteor,  17 
Fed.  Cas.  188,  admitting  communication  of  Secretary  of  State  to  prove 
vrar  existed  between  two  foreign  powers. 

Admiralty  in  disposition  of  costs  looks  to  substantial  rights  and  equities  of 
tbe  parties. 

Cited  in  Shaw  v.  Thompson,  Olcott,  156,  Fed.  Cas.  12,726,  holding  that 
court  may  withhold  costs  from  both  parties  when  neither  propose,  to  do 
what  is  substantially  just;  The  Ship  Moslem,  Olcott,  378,  Fed.  Cas.  9876, 
holding  that  prima  facie  prevailing  party  is  entitled  to  recover  costs. 

Miscellaneous.  Cited  in  Watkins  v.  Mooney,  114  Ky.  652,  71  S.  W.  624, 
where  mayor  was  absent  for  a  day  at  another  town  twenty-five  miles  dis- 
tant, president  of  aldermanic  board  cannot  appoint  police  commissioner. 

Meaning  of  "absent"  or  "absence"  as  applied  to  public  officer.    Note, 
Ann.  Cas.  1912G,  353. 

3  DalL  42-n54,  1  I..  Ed.  502,  UNITED  STATES  v.  I^AWBENOE. 

Mandamus  wUl  not  lie  to  control  decision. 

Approved  in  Kerr  v.  Superior  Court,  130  Cal.  185,  62  Pac.  480,  refusing 
mandamus  against  Superior  Court  to  issue  citation  against  director  of 
irrigation  district;  Sears  v.  Vary,  208  Mass.  209,  94  N.  E.  468,  applying 
rule  to  assessors  in  levying  tax;  Lyle  v.  Cass  Circuit  Judge,  157  Mich.  34, 
121  N.  W.  306,  holding  mandamus  not  available  to  review  refusal  to  change 
venue;  Cattermole  v.  Ionia  Circuit  Judge,  136  Mich.  280,  99  N.  W.  3,  man- 
damus does  not  lie  to  review  action  of  circuit  judge  in  quashing  writ  and 
to  compel  setting  aside  of  order;  State  v.  Plumley;  83  Vt.  493,  76  Atl.  147, 
holding  mandamus  does  not  lie  to  compel  assistant  county  judges  to  agree 
on  liquor  license  commissioners;  State  ex  rel.  Driver  v.  Commissioners  etc. 
of  Talladega,  3  Port.  416,  inferior  tribunal  will  not  be  compelled  to  grant 
right  under  statute  to  which  party  J»pplying  has  not  entitled  himself; 
Ex  parte  Railway  Co.,  101  U.  S.  720,  25  L.  Ed.  875,  writ  refused  where 
remedy  was  by  appeal;  In  re  Turner,  5  Ohio,  544,  wh9re  mandamus  issued 
to  compel  court  to  proceed  to  trial;  dissenting  opinion  in  Richardson  v. 
Farrar,  88  Va.  773,  15  S.  E.  122,  holding  court  would  be  compelled  to 


3DalL42-M  NOTES  ON  U.  S.  REPORTS.  16 

hear  and  determine  election  contest ;  Ex  parte  Newman,  14  Wall;  16>6,  20 
L;  Ed.  879,  refusing  mandamus  to  compel  Circuit  Court  to  entertain  juris- 
diction of  appeal  from  District  Court  in  libel  for  wages;  People  ex  rel.  v. 
Weston,  28  Cal.  641,  where  mandamus  issi^ed  to  compel  county  judge  to 
try  cause  on  ground  that  he  has  improperly  dismissed  appeal  from  Jus- 
tice's Court ;  Commonwealth  v.  Judges,  3  Binn.  275,  holding  writ  does  not  lie 
to  reinstate  appeal;  Territory  v.  Ortiz,  1  N.  M.  15,  holding  that  continu- 
ance was  in  the  discretion  of  court  and  that  niandamus  would  not  lie 
to  compel  the  court  to  proceed  to  judgment;  Petition  of  Farwell,  2  N.  H. 
125,  where  judgment  refusing  to  accept  an  award  was  not  reviewed ;  State 
v.  Mitchell,  3  Brev.  (S.  C.)  522,  holding  that  mandamus  would  not  lie  in 
case  the  ordinary  should  grant  administration  to  one  not  entitled;  People 
ex  rel.  Doughty  v.  Judges  of  Dutchess  Common  Pleas,  20  Wend.  660,  Su- 
preme Court  cannot  by  mandamus  dictate  judgment  to  be  rendered;  People 
ex  rel.  v.  Judge  of  Wayne  Co.,  1  Mich.  361,  holding  writ  would  not  be 
allowed  to  compel  court  to  come  to  particular  conclusion  or  to  retrace  its 
steps  where  it  has  already  acted;  Judges  of  the  Oneida  Common  Pleas  v. 
People,  18  Wend.  94,  holding  decision  that  title  to  land  had  come  in  ques- 
tion could  not  be  reviewed  by  mandamus;  Arberry  v.  Bravers,  6  Tex.  468, 
55.  Am.  Dec.  7^^*  holding  writ  would  not  lie  to  compel  chief  justice  of 
(vounty  to  order  election  for  seat  of  justice  of  county;  Fisher's  Negroes  v. 
Dobbs,  6  Yerg.  151,  Jiolding  that  discretion  of  the  chancellor  in  relation 
to  consenting  to  manumission  of  slave  was  subject  to  control;  Richards  v. 
Wheeler,  2  Aik.  372^  holding  that  writ  would  not  lie  to  compel  County 
Court  to  accept  report  of  auditors;  Borough  of  Ansonia  v.  Studley,  C7 
Conn.  180,  34  Atl.  1032,  where  mandamus  to  compel  judge  to  make  a  find- 
ing of  facts  was  denied ;  Chase  v.  Blackstone  Canal  Co.,  10  Pick.  246,  where 
court  refused  to  grant  mandamus  to  compel  allowance  of  costs;  Laird  v. 
Abrahams,  15  N.  J.  L.  26,  where  court  compelled  a  justice  of  peace  to  issue 
execution ;  Ex  parte  Crane,  5  Pet.  207,  8  L.  Ed.  99,  People  ex  rel.  v.  Pear- 
son, 2  Scam.  204,  33  Am.  Dec.  448,  and  Page  v.  Clapton,  30  Gratt.  419, 
all  holding  that  mandamus  lies  to  compel  judge  to  sign  bill  of  exceptions; 
Jelley  v.  Roberts,  60  Ind.  7,  holding  that  where  judge  had  settled  and 
signed  bill  he  would  not  be  compelled  to  amend  same;  Detroit  etc*  Co.  v. 
Gartner,  75  Mich.  377,  42  N.  W.  974,  where  an  application  for  mandamus 
to  compel  the  granting  of  new  trial  was  denied ;  State  ex  reh  v.  Macon  Co. 
Court,  68  Mo.  51,  where  mandamus  to  compel  County  Court  to  allow  cred- 
itor whose  claim  had  been  reduced  to  judgment,  a  warrant  on  the  treasurer 
payable  out  of  a  particular  fund,  was  refused;  Commonwealth  ex  rel. 
Brackenridge  v.  Judges  gf  the  Common  Pleas,  1  Serg.  &  R.  195,  196,  hold- 
ing that  writ  would  not  lie  to  compel  admission  of  an  attorney;  Ex  parte 
Echols,  30  Ala.  700,  88  Am.  Dec.  751,  holding  that  writ  would  not  lie  to 
compel  speaker  to  send  bill  to  senate;  Board  of  Supervisors  of  Mason  Co. 
V.  Mintum,  4  W.  Va.  304,  holding  writ  would  not  lie  to  compel  board 
of  supervisors  to  permit  one  to  give  bond  and  qualify  as  treasurer;  Griffith 
'  V.  Cochran,  5  Binn.  103,  106,  holding  writ  would  lie  to  secretary  of  land 
office  to  compel  hinfto  make  calculations  of  purchase  money  and  interest 
on  land  sold;  State  ex  rel.  Register  of  Lands  v.  Secretary  of  State,  33  Mo. 


17  PBNHAIiiOW  V.  DO ANE.  3  Dall.  64r-120 

304,  holding  writ  would  not  lie  to  compel  Secretary  of  State  to  verify 
correctness  of  an  account;  In  re  Proprietors  of  Kennebunk'ToU  Bridge,  11 
Me.  260,  holding  that  county  commissioners  could  not  be  compelled  to 
accept  a  report;  Gibbs  v.  Co.  Commrs.  of  Hampden,  19  Pick.  299,  holding 
that  mandamus  would  not  lie  to  compel  county  commissioners  to  reverse 
decision  upon  complaint  for  abatement  of  tax;  Towle  v.  State,  3  Fla.  210, 
holding  writ  would  not  lie  against  a  Controller  of  State  in  administration 
of  the  affairs  of  his  office. 

Law  of  mandamus.    Note,  89  Am.  Dec.  732. 

3  Oaa  54-120,  1  L.  Ed.  507,  PENHAUiOW  V.  DOANE. 

Congress,  under  Oonfederatioii,  had  power  to  Institate  00^  of  Aivpeals 
wltli  jurisdiction  in  prize  cases. 

Approved  in  Ryman  Steamboat  Line  Co.  v.  Commonwealth,  125  Ky.  257, 
10  L.  R.  A.  (N.  S.)  1187,  101  S.  W.  403;  holding  jurisdiction  over  Cumber- 
land River  for  purposes  of  interstate  commerce  is  in  Congress ;  Bingham  v. 
Cabbdtt,  3  Dall.  40,  1  L.  Ed.  501,  where,  in  action  by  privateer  against  pub- 
lic agent,  to  recover  the  proceeds  of  prize,  it  was  held  that  Congress  had 
power  to  pass  resolutions  relating  to  prize ;  Shallenberger  v.  Brinton,  52  Pa. 
St.  74,  holding  that  Congress  has  power  to  issue  treasury  notes  and  make 
them  lawful  money  and  legal  tender;  King  v.  McLean  Asylum,  64  Fed. 
336,  21  U.  S.  App.  481,  where  there  was  a  petition  for  habeas  corpus  to 
secure  release  by  a  citizen  of  one  State  from  illegal  restraint  by  a  citizen 
of  another  State ;  Mayor  etc.  v.  Dargan,  46  Ala.  317,  to  point  that  general 
assembly  within  limit  of  its  powers  is  only  legislative  body  of  State. 

Oaptain  of  privateer  is  responsible  to  Congress  or  to  their  constituted 
authority  for  legality  of  captures. 

Cited  in  Jennings  v.  Carson,  4  Cr.  17,  20,  21,  2  L.  Ed.  586,  587,  privateer 
capturing  neutral  not  liable  to  decree  of  restitution  unless  property  or 
its  proceeds  came  to  his  hands. 

PtoceedingB  of  admiralty  are  in  rem  and  death  of  one  of  parties  does  not 
affect  light  to  have  decree  executed. 

Approved  in  The  Ticeline,  208  Fed.  671,  holding  claim  in  rem  against 
vessel  for  tort  not  abated  by  death  of  claimant;  Erie  etc.  Transp.  Co.  v. 
Erie  R.  Co.,  142  Fed.  12,  after  decree  determining  fault  for  collision  and 
damages  and  apportioning  same,  admiralty  cannot  entertain  independent 
suit  by  one  vessel  to  enforce  contribution  for  cargo  damage;  Whitney  v. 
Walsh,  1  Cush.  32,  48  Am.  Dec.  590,  where  decree  of  United  States  District 
Court  forfeited  goods  as  smu^led;  The  N.  W.  Thomas,  1  Biss.  215,  Fed, 
CaB.  10,386,  where  libel  was  filed  on  claim  for  services  performed;  Juando 
(Stoughton)  V.  Taylor,  2  Paine,  679,  Fed.  Cas.  7658,  where  libel  for  dam- 
ages was  brought  against  privateer;  Webber  v.  Underbill,  19  Wend.  451, 
where  effect  of  death  of  defendant  in  replevin  was  considered;  Cushing  v. 
Laird,  107  U.  S.  80,  27  L.  Ed.  896,  2  Sup.  Ct.  205,  where  there  was  libel 
in  admiralty  to  recover  damages  for  destruction  of  libelant's  vessel ;  Munks 
V.  Jackson,  66  Fed.  574,  29  U.  S.  App.  482,  to  point  that  claim  that  no 

1—2  .    , 


V 

\ 


3  DaU.  64r-120  NOTES  ON  U.  S.  REPORTS.       '  18 

jadgment  could  be  rendered  because  claimant  of  yessel  wbo  was  costipu- 
lator  on  bond  was  dead,  is  untenable;  The  James  A.  Wright,  10  Blatchf. 
163,  Fed.  Cas.  7191,  where  before  trial  one  of  defendants  died;  Dan- 
forth  V.  Danforth,  111  111.  241,  where  party  died  after  trial  but  before 
judgment;  Reid  v.  Holmes,  127  Mass.  328,  where  judgment  was  entered 
after  defendant's  death  on  default  suffered  in  his  life. 

Distinguished  in  iBLaydock  v.  Cobb,  5  Day,  529,  holding  that  in  equity 
decree  cannot  have  any  effect  against  stranger  unless  there  were  proper 
parties  before  court. 

Judgments  in  rem  and  their  effect  as  res  adjudicata.    Note,  76  Am. 
Dec.  725. 

Agent  pasring  over  money  under  judgment  after  notice  of  an  appeal  is  not 
excused  in  payment. 

Cited  in  Penacoock  Sav.  Bank  v.  Hubbard,  68  N.  H.  167,  where  money 
was  paid  on  a  check  by  mistake  to  messenger  who  paid  it  to  payee,  it  could 
not  be  recovered  from  messenger. 

Appeal  snspends  execution  of  decree  from  moment  it  was  made. 

.  Cited  in  Folger  v.  The  Robt.  G.  Shaw,  2  Wood.  &  M.  540,  Fed.  Cas. 
4899,  where  appeal  was  taken  by  libelant  for  salvage  on  account  of  small- 
ness  of  salvage  allowed;  State  v.  Johnson,  13  Fla.  46,  where  an  appeal 
has  been  taken  and  supersedeas  allowed  from  order  appointing  receiver, 
power  of  lower  court  is  suspended;  Anonymous,  1  Gall.  24,  Fed.  Cas.  444, 
where  court  said  cause  is  to  be  heard  anew  both  as  to  law  and  fact;  Poole 
v.  Nixon,  19  Fed.  Cas.  999,  arguendo. 

Distinguished  in,  United  States  v.  Chin  Dong  Ying,  229  Fed.  816,  holding 
appeal  from  order  of  deportation  vacated  order  entirely ;  Dixon  v.  Watkins, 
9  Ark.  152,  execution  wrongfully  issued  upon  judgment  appealed  from  is 
voidable  but  not  absolutely  void. 

Writ  of  inhibition  enables  appellate  court  in  case  of  disobedience  to  punish 
inferior  court  for  contempt. 

Cited  in  In  re  Lyman,  55  Fed.  43,  holding  that  threatened  ^attempt  to 
oust  court  and  its  officers  from  their  rooms  might  be  properly  enjoined. 

Want  of  monition  to  appellees  to  compel  their  appearance  is  cured  by  ap- 
pearance in  appellate  court.  i 

Cited  in  the  Columbia,  73  Fed.  237,  44  U.  S.  App.  326,  where  several 
parties  with  distinct  claims  were  brought  into  one  proceeding  for  the 
limitation  of  liability  by  a  ship  owner;  The  Joseph  H.  Toone,  Blatchf.  Pr. 
259,  Fed.  Cas.  7542,  where  district  attorney  obtained  order  for  monition 
to  attach  vessel  by  delivering  copy  of  monition  to  proctor. 

The  State,  in  fact,  is  composed  of  all  citizens,  not  of  part  only. 

Approved  in  People  v.  Crane,  214  N.  Y.  160,  Ann.  Gas.  1916B,  1254,  108 
N.  £.  429,  holding  State  could  discriminate  between  employment  of  citizens 
and  aliens  in  public  work ;  Texas  v.  White,  7  Wall.  720, 19  L.  Ed.  236,  where 
meaning  of  the  term  ''State"  was  discussed;  Brown  v.  State,  5  Colo.  499, 
where  point  was  made  that  a  complaint  was  entitled  ''State  of  Colorado" 


19  PENHALLOW  v.  DOANE.  3  Dall.  64-120 

• 
instead  of  The  People  of  the  State  of  Colorado";  West  River  Bridge  Co. 
V.  Diz,  6  fiow.  539,  12  L.  Ed.  648,  to  point  that  all  property  of  State  is 
derived  from  its  government  held  suhject  to  its  wants  in  taxation  and  to 
public  uses  both  in  war  and  peaee;  Bogart  v.  United  States,  2  Ct.  CI.  164, 
where  term  "war  risk"  in  poHcy  wherein  government  was  insurer  was 
construed. 

District  Court  has  whole  original  Jurisdiction  in  admiralty  and  maritime 


Cited  in  Packard  y.  The  Sloop  Louisa,  2  Wood.  &  M.  52,  Fed.  Cas. 
10,652,  where  libel  was  filed  for  wages;  The  Cargo  of  the  Ship  Emulous, 
1  Gall.  573,  Fed.  Cas.  4479,  where  extent  of  this  jurisdiction  was  con- 
sidered; Brown  v.  United  States,  8  Cr.  137,  3  L.  Ed.  514,  holding  that 
British  property  in  the  United  States  at  breaking  out  of  hostilities  cannot 
be  condemned  without  legislative  act;  The  Hiawatha,  Blatchf.  Pr.  7,  Fed. 
Cas.  6451,  District  Courts  have  exclusive  jurisdiction  in  prize  cases ;  Robin- 
son V.  Hook,  4  Mason,  146  Fed.  Cas.  11,956,  which  was  bill  for  discovery 
of  an  informer's  share;  The  Amiable  Nancy,  1  Paine,  117,  Fed.  Cas.  331, 
where  libel  was  filed  for  damages  by  owner  of  schooner  against  owner  of 
privateer. 

Distinguished  in  Braithwaite  v.  Jordan,  5  N.  Dak.  216,  65  N.  W.  707, 
holding  that  admiralty  did  not  have  exclusive  jurisdiction  to  enforce  bonds 
&nd  stipulations  taken  on  the  instance  side  of  the  court.  * 

A  Court  of  Admiralty  of  one  nation  can  carry  into  effect  determination  of  a 
Court  of  Admiralty  of  another. 

Cited  in  The  Centurion,  1  Ware,  480,  Fed.  Cas.  2554,  where  libel  in  per- 
sonam was  brought  against  master  of  a  brig  for  salvage;  The  Steamship 
Zodiac,  5  Fed.  222,  to  point  that  libel  in  personam  will  in  some  cases  lie 
to  enforce  a  decree  in  rem;  The  Enterprise,  2  Curt.  319,  Fed.  Cas.  4497, 
where  court  said  that  libel  in  personam  will  lie  to  enforce  decree  for  wages ; 
The  Meteor,  17  Fed.  Cas.  180,  on  admiralty  jurisdiction  of  Federal  courts. 

Distinguished  in  Assign  v.  The  Lamar,  2  Fed.  Cas.  69,  holding  judgment 
in  common-law  court  not  enforceable  in  admiralty. 

On  writ  of  error  to  Supreme  Court  from  decree  in  admiralty,  decree  can  be 
rectified  in  the  parts  considered  erroneous. 

Approved  in  Lamport  v.  Smedley,  213  N.  Y.  85,  106  N.  E.  923,  holding 
appellate  division  of  court,  could  on  reversal  of  judgment  in  equity  make 
its  own  findings  and  decree ;  Braithwaite  v.  Jordan,  5  N.  Dak.  252,  65  N.  W. 
720,  on  appeal  in  admiralty  cases,  case  is  heard  de  novo;  Insurance  Co. 
V.  Folsom,  18  Wall.  249,  21  L.  Ed.  833,  if  finding  of  court  be  general  one. 
Supreme  Court  will  only  review  questions  of  law;  Barreda  v.  Silsbee,  21 
How.  167,  16  L.Ed.  93,  holding  that  sufficiency  of  evidence  was  for  jury 
to  determine;  United  States  v.  King,  7  How.  865,  12  L.  Ed.  948,  holding 
that  writ  of  error  only  brings  up  questions  of  law  and  that  questions  of 
fact  remain  unexamined;  The  Brig  Oriole,  Olcott,  70,  Fed.  Cas.  10,573,  to 
point  that  admiralty  divides,  modifies  or  withholds  costs  in  correspondence 
with  extrinsic  justice  of  cause;  In  re  Metzger,  17  Fed.  Cas.  234;  arguendo. 


\ 


N 


3  Dall.  121-132  NOTES  ON  U.  S.  REPORTS.  20 

Distingaished  in  Cotton  t.  Wallace,  3  Dall.  304, 1  L.  Ed.  ttS,  holding  that 
where  judgment  pr  decree  is  affirmed  on  writ  of  error  4tere  can  be  no 
allowance  of  damages  except  for  delay. 

/  Practice  and  procedure  governing    transfer  of    causes  to  Federal 

Supreme  Court  for  review.    Note,  66  L.  B.  A.  863. 

8  DaU.  121-182,  1  L.  Bd.  585,  triTITED  STATES  ▼.  PETERS. 

The  District  Court  has  no  Jurisdiction  of  libel  against  foreign  privateer  for 
capturing  American  vessel  on  blgb  seas. 

Approved  in  Murray  v.  Wilson  Distilling  Co.,  164  Fed.  18,  92  C.  C.  A.  1, 
holding  Federal  court  has  jurisdiction  of  suit  against  State  Dispensary 
Commission  of  South  Carolina;  The  Invincible,  2  Gall.  36,  42,  Fed.  Cas. 
7054,  trial  of  prizes  belongs  exclusively  to  courts  of  country  of  the  captors ; 
Juando  (Stoughton)  v.  Taylor,  2  Paine,  670,  679,  683,  Fed.  Cas.  7558, 
holding  that  this  country  has  jurisdiction  over  captures  by  foreign  vessels 
if  such  vessels  were  equipped  here  and  the  prizes  brought  here;  The  pivina 
Pastora,  4  Wheat.  66,  4  L.  Ed.  515,  holding  that  unless  neutral  rights  of 
United  States  are  violated,  legality  of  captures  by  cruisers  of  foreign 
country  cannot  be  determined;  The  Santissima  Trinidad,  7  Wheat.  350, 
6  L.  Ed.  471,  in  case  of  violation  of  neutral  territorial  jurisdiction  no 
distinction  is  made  between  capture  of  public  and  private  armed  ships*; 
Llnvincible,  1  Wheat.  252,  259,  260,  4  L.  Ed.  84,  86,  legality  of  belligerent 
seizures  is  exclusively  for  courts  of  capturing  power  to  determine;  Gov- 
ernor of  Georgia  v.  Madrazo,  1  Pet.  122,  7  L.  Ed.  79,  where  libel  was  filed 
for  slaves  which  had  been  brought  into  a  State  and  seized  as  an  illegal 
importation;  dissenting  opinion  in  Chaffraix  v.  Board  of  Liquidation,  11 
Fed.  648,  holding  that  Circuit  Court  has  jurisdiction  to  prevent  State 
officers  from  diverting  a  fund  collected  by  taxation;  Western  Union  Tel. 
Co.  v.  Henderson,  68  Fed.  591,  suit  to  restrain  State  auditor  from  cer- 
tifying and  transmitting  to  the  county  auditors  valuations  of  the  property 
of  complainant. 

ProMbition  lies  to  district  Judge  from  Supreme  Court,  when  court  is  acting 
in  case  where  it  has  no  Jurisdiction. 

Approved  in  State  v.  White,  40  Fla.  320,  24  South.  167,  holding  plea 
to  jurisdiction  unnecessary  before  resort  to  jurisdiction  when  petition 
on  its  face  showed  lack  of  jurisdiction;  United  States  v.  Hoffman,  4 
Wall.  163,  18  L.  Ed.  355,  holding  that  prohibition  will  not  lie  where 
court  has  already  disposed  of  the  case;  Ex  parte  Easton,  95  U.  S.  71, 
24  L.  Ed.  374,  application  to  restrain  District  Court  from  exercising 
jurisdiction  in  proceeding  in  rem  to  enforce  a  lien  for  wharfage;  Bains  v. 
Schooner  James  etc.,  1  Bald.  563,  Fed.  Caa.  756,  where  libel  was  filed  to 
obtain  the  payment  of  a  balance  due  for  wages;  Ex  parte  Phonix  Ins.  Co., 
118  U.  S.  626,  80  L.  Ed.  280,  7  Sup.  Ct.  32,  petition  by  owner  of  steam 
vessel  to  try  his  liability  for  damages  to  buildings  by  fire  and  for  limi- 
tation of  such  liability;  In  re  Cooper,  143  U.  S.  506,  506,  86  L.  Ed.  248, 
12  Sup.  Ct.  461,  462,  application  for  prohibition  to  the  District  Court  of 


21  TALBOT  V.  JANSON.  3  Dall.  133-170 

Alaska  to  Testrain  enforcement  of  decree  of  condemnation;  Tapia  v. 
Martine£^  4  N.  M.  167,  16  Pac.  274,  where  there  was  a  motion  for  per- 
emptoiy  prohibition  to  restrain  a  justice  from  proceeding  in  replevin; 
Ez  parte  Graham,  10  Wall.  643,  19  L.  Ed.  982,  holding  writ  will  not  lie 
in  proceedings  to  confiscate  real  estate  under  the  act  of  July  17,  1862; 
Smith  V.  Whitney,  116  U.  S.  176,  29  L.  Ed.  604,  6  Sup.  Ct.  575,  holding 
that  writ  does  not  lie  to  the  secretary  of  the  navy;  Lincoln  etc.  M.  Co.  v^ 
District  Court,  7  N.  M.  492,  495,  507,  38  Pac.  58g,  583,  687,  holding  writ 
may  be  issued  in  vacation  to  a  board  or  officer  exercising  judicial  or  quasi- 
judicial  functions ;  State  v.  Gleason,  12  Fla.  203,  an  application  to  Supreme 
Court  to  issue  a  quo  warranto. 

The  writ  of  prohibition.    Note,  111  Am.  St.  Bep.  944. 

Superintending  control  of  civil  courts  over  courts-martial.    Note,  20 
L.  B.  A.  (N.  S.)  416. 

Superintending  control  and  supervisory  jurisdiction  over  inferior  or 
subordinate  tribunal.    Note,  51  L.  B.  A.  104. 

3  DaU.  135-170,  1  L.  Ed.  640,  TAISOT  v.  JANSON. 
How  expatriation  effected. 
Approved  in  Mackenzie  v.  Hare,  165  Cal.  779,  Ann.  Oas.  1915B,  261,  134 
Pac.  714,  holding  native-born  woman  lost  American  citizenship  by  mar- 
riage to  alien ;  Comitis  v.  Parkerson,  56  Fed.  558,  560,  holding  that  expatria- 
tion can  only  be  effected  in  accordance  with  law;  Murray  v.  McCarty,  2 
Munf.  (Va.)  402,  403,  404,  where  question  was  whether  right  of  citizen- 
ship in  Virginia  can  be  relinquished  without  complying  with  act  relating 
to  expatriation;  Amy  v.  Smith,  1  Litt.  (Ky.)  341,  holding  that  every  white 
person  bom  within  United  States  is  a  citizen;  Ware  v.  Wisner,  4  McCr. 
69,  50  Fed.  312,  holding  that  persons  bom  of  citizens  who  never  renounced 
their  citizenship  within  the  rule  laid  down  in  the  principal  case  have 
not  ceased  to  be  citizens;  Norris  v.  Doniphan,  4  Met.  (Ky.)  407,  where 
right  of  Federal  government  over  citizens  was  considered ;  Brooks*  v.  Clay, 
3  A.  K.  Marsh.  550,  s.  c,  sub  nom.  Shearer  v.  Clay,  1  Litt.  (Ky.)  266,  hold- 
ing that  an  American  citizen  removing  to  the  dominions  of  a  friendly 
power  is  capable  of  holding  and  selling  lands  previously  acquired;  dis- 
senting opinion  in  Shanks  v.  Dupont,  3  Pet.  267,  7  L.  Ed.  675,  discussing 
the  subject  of  expatriation  and  citizenship. 

Prizes  captured  in  violation  of  neutrality  laws  by  our  citizens  and  brought 
here  wUl  be  restored  to  rightful  owners. 

Approved  in  Llnvincible,  1  Wheat.  253,  258,  260,  4  L.  Ed.  84,  85,  86, 
a  proceeding  to  obtain  restitution  of  a  prize ;  Fay  v.  Montgomery,  1  Curt. 
269,  Fed.  Cas.  4709,  where  vessel  was  seized  as  prize  and  the  owners 
filed  libel  for  restitution  and  damages;  The  Schooner  Tilton,  5  Mason, 
471,  Fed.  Cas.  14,054,  where  a  libel  was  brought  to  restore  to  the  rightful 
owner  the  possession  of  a  ship;  The  Schooner  Lively,  1  Gall.  322,  324, 
Fed.  Cas.  8403,  on  the  point  as  to  the  damages  allowed  on  the  restitution 


3  Dall.  171-184  NOTES  ON  U.  S.  REPORTS.  22 

Qf  a  prize;  Juando  (Stoughton)  v.  Taylor,  2  Paine,  670,  674,  676,  681, 
Fed.  Gas.  7558,  where  court  said  that  courts  could  not  punish  subject  of 
another  government  for  executing  mandates  of  his  sovereign  beyond  its 
jurisdiction;  Hallett  v.  Lamothe,  3  Murph.  (N.  C.)  296,  holding  that  courts 
of  common  law  have  no  jurisdiction  over  prizes;  Novion  v.  Hallett,  16 
Johns.  346,  holding  that  jurisdiction  in  cases  of  prize  and  of  everything 
incidental  belongs  exclusively  to  admiralty;  Brown  v.  United  States,  8 
Or.  137,  3  L.  Ed.  514,  on  the  point  that  couks  of  United  States  have  as 
full  jurisdiction  in  matters  of  admiralty,  maritime,  and  prize  as  admiralty 
of  England;  The  Ship  Emulous,  1  Gall.  573,  Fed.  Gas.  4479,  holding  that 
cargo  of  enemy  in  our  ports  at  breaking  out  of  war  is  confiscable ;  Gotton 
V.  Wallace,  3  pall.  304,  1  L.  Ed.  613,  holding  that  where  decree  was 
affirmed  there  could  be  no  allowance  of  damages  except  for  delay;  Stewart 
V.  United  States,  1  Gt.  Gl.  117,  holding  captor  had  no  such  interest  in 
vessel  recaptured  as  would  compel  the  government  to  press  a  claim  for  it. 

Distinguished  in  The  Invincible,  2  Gall.  37,  40,  Fed.  Gas.  7054,  holding 
that  trial  of  prizes  belongs  exclusively  to  captors;  Teasdale  v.  Sloop 
Rambler,  Bee,  10,  Fed.  Gas.  13,815,  holding  that  plea  to  jurisdiction  can 
only  be  interposed  by  defendant  in  propria  persona. 

Miscellaneous.  Gited  in  Bond  v.  Storrs,  13  Gonn.  415,  erroneously; 
The  Newaygo,  205  Fed.  181,  rate  of  interest  in  admiralty  claims  oonforms 
to  legal  rate  of  state,  and  is  not  necessarily  six  per  cent. 

0 

3  DaU.  171-184,  XL.  Ed.  656,  HYLTON  Y.  UNITED  STATES. 

A  tax  oh  carriages  Is  not  direct  tax  and  does  not  have  to  be  apportioned 
among  States  according  to  numbers. 

Approved  in  Brushaber  v.  Union  Pac.  Ry.  Go.,  240  U.  S.  14, 19,  60  L.  I|d. 
600,  502,  36  Bup.Gt.  240,  242,  upholding  income  tax  provisions  of  tariff  act 
of  1913 ;  Thomas  v.  United  States,  192  U.  S.  370,  48  L.  Ed.  484,  24  Sup.  Gt. 
306,  upholding  stamp  duty  on  sale  of  share  of  corporate  stock  imposed 
by  war  revenue  act  of  1898;  Knowlton  v.  Moore,  178  U.  S.  85,  86,  94, 
44  L.  Ed.  987,  20  Sup.  Gt.  764,  upholding  and  construing  20  Stat.  448, 
§§  29,  30,  relative  to  taxes  on  legacies;  De  Pass  v.  Bidwell,  124  Fed.  622, 
upholding  31  Stat.  77,  §  5,  providing  for  revenues  for  Porto  Rico ;  Ex 
parte  White,  228  Fed.  91,  holding  army  officer  not  subject  to  pbll  tax 
of  State  in  which  he  was  on  duty,  his  residence  being  elsewhere;  United 
States  V.  Thomas,  115  Fed.  212,  holding  tax  on  corporate  shares  not  direct ; 
Territory  v.  Gonnell,  2  Ariz.  343,  16  Pac.  210,  upholding  law  taxing  all 
liquor  dealers  within  five  miles  of  town  at  one  price  and  liquor  dealers 
at  wayside  inns  at  less  price ;  Wheeler  v.  Weightman,  96  Kan.  66,  L.  R.  A. 
1916A,  846,  149  Pac.  984,  holding  void  statute  imposing  lax  payable  on 
record  of  real  estate  mortgage;  Mark  v.  District  of  Golumbia,  37  App. 
D.  G.  566,  567,  37  L.  R.  A.  (N.  S.)  440,  upholding  wheel  tax  on  automo- 
biles; State  V.  Brodnax,  228  Mo.  46,  137  Am.  St.  Rep.  613,  128  S.  W. 
183,  upholding  stamp  tax  act  of  1907;  People  v.  Reardon,  184  N.  Y.  447, 
112  Am.  St.  Rep.  637,  77  N.  E.  975,  upholding  tax  on  stock  transfers; 
Springer  v.  United  States,  102  U.  S.  597,  599,  602,  26  L.  Ed.  257,  258,  259, 


23  HYLTON  v.  UNITED  STATES.  3  DaU.  171-184 

holding  that  direct  taxes  are  only  capitation  taxes  and  taxes  on  real 
estate;  Pacific  Ins.  Co  J  v.  Soiile/  7  Wall.  444,  445,  19  L.  Ed.  99,  holding 
that  income  tax  upon  insurance  companies  under  the  act  of  July  13,  1866, 
was  a  duty  or  excise;  Edye  t.  Robertson,  21  Blatchf.  465,  18  Fed.  139, 
holding  that  an  act  imposing  a  duty  on  passengers  is  not  a  capitation. 
tax ;  Scholey  y.  Rew,  23  Wall.  347,  23  L.  Ed.  102,  holding  that  a  ^accession 
tax  was  not  a  direct  tax  but  an  impost  or  excise;  Smedberg  v.  Bentley. 
22  Fed.  Cas.  369,  upholding  income  ta?  of  1870 ;  Fifield  v.  Close,  15  Mich. 
506,  and  Smith  v.  Short,  40  Ala.  386,  both  holding  that  Congress  had  not 
the  power  to  require  a  stamp  on  process  of  State  courts;  dissenting  opinion 
in  Rhinehart  v.  Scliuyler,  2  Gilm.  539,  holding  that  law  regulating  classi- 
fication and  taxation  of  lands  was  constitutional;  Veazie  Bk.  v.  Fenno, 
8  Wall.  544,  546,  19  L.  Ed.  486,  487,  holding  that  taxation  of  national 
banks  under  act  of  March  13, 1866,  was  not  a  direct  tax ;  Dodge  v.  Woolsey, 
18  How.  352,  15  L.  Ed.  409,  holding  that  where  State  chartered  a  bank 
and  charter  stipulated  amount  of  tax,  statute  fixing  a  different  tax  was 
unconstitutional;  Pollock*  v.  Farmers'  L.  &  T.  Co.,  157  U.  S.  570,  571,  576, 
577,  616,  621,  623,  625,  626,  628,  631,  633,  636,  639,  640,  642,  646,  647,  89 
L.  Ed.  815,  818,  819,  832,  834,  836,  15  Sup.  Ct.  685,  687,  689,  703,  714,  158 
U.  S.  623,  626,  627,  642,  647,  648,  649,  651,  653,  655,  657,  663,  665,  670, 
686,  687,  689,  095,  698,  707,  711,  715,  39  L.  Ed.  1120,  1122,  1127,  1129,  1133, 
1137.  1142,  1146,  1147,  1150,  15  Sup.  Ct.  915,  916,  922,  924,  933,  939,  941, 
943,  944,  947,  95p,  where  the  income  tax  law  was  held  unconstitutional; 
dissenting  opinion  in  Solon  v.  State,  54  Tex.  Cr.  291,  114  S.  W.  362, 
majority  upholding  statute  prohibiting  lending  money  to  pay  poll  tax  in 
order  to  enable  borrower  to  vote. 

What  is  "direct  tax"  within  meaning  of  Federal  constitution.    Note, 
Ann.  Oas.  1912B,  1829. 

Constitutionality  of  poll  taxes.    Note,  ,12  Ann.  Oas.  317. 

Poll  taxes.    Note,  29  L.  B.  A.  404. 

Validity  of  stock  transfer  tax.    Note,  8  L.  B.  A.  (N.  S.)  315. 

Power  to  declare  statute  void  will  never  be  exercised  except  in  a  very  clear 
case. 

Approved  in  Smeltzer  v.  St.  Louis  etc.  R.  Co.,  158  Fed.  652,  upholding 
section  20  of  Interstate  Commerce  Act  of  1887;  Flint  River  S.  S.  Co.  v. 
Foster,  5  Ga.  205,  48  Am.  Dec.  257,  Cotton  v.  County  Comnirs.  of  Leon  Co., 
6  Fla.  613,  Cincinnati  etc,  R.  R.  Co.  v.  Commissioners  of  Clinton  Co., 
1  Ohio  St.  83,  Carey  v.  Wyandot  County,  20  Ohio,  4,  Louisville  etc.  R.  R. 
Co.  v.  County  Court,  1  Sneed,  670,  62  Am.  Dec.  438,  Emerick  v.  Harris, 
1  Binn.  422,  all  following  rule;  White  v.  Kendrick,  1  Brev.  (S.  C.)  473, 
holding  an  act  extending  the  jurisdiction  of  justices  to  thirty  dollars  to  be 
nnconstitutional ;  O'Neil  v.  McKewn,  1  S.  C.  151,  holding  that  Conprrcss 
has  power  to  make  treasury  notes  lawful  money  and  legal  tender;  United 
States  V.  William,  28  Fed.  Cas.  616,  617,  upholding  embargo  law ;  dissent- 
ing opinion  in  Howard  v.  Illinois  etc:  R.  Co.,  207  U.  S.  510,  62  L.  Ed.  314, 
28  Sap.  Ct.  141,  majority  holding  void  Employers'  Liability  Act  of  1906. 


3  DaU.  184-198  NOT^S  ON  U.  S,  REPORTS.  24 

3  DaJl.  184-188y  1  Ii.  Ed.  662,  HHJiS  Y.  BOSS. 

Failure  of  record  to  show  facte  on  w^b  decree  based  not  groimd  for 
reversaL 

Explained  in  Pike  v.  Armistead^  2  Dev.  Eq.  25,  holding  that  decree  not 
declaring  any  facts  or  any  principle  but  simply  dismissing  the  bill,  will 
not  be,  of  course,  reversed,  but  cause  will  be  reheard  upon  proofs. 

8  DaU.  188-198,  1  L.  Ed.  663,  McDONOUOH  v.  DANNEBT  ft  THE  SHIP 
MABT  FOBD. 

District  Court's  Jorlsdlction  to  award  salvage  against  an  English  ship. 

Cited  in  The  Schooner  Tilton,  5  Mason,  471,  Fed.  Cas.  14,054,  an  action 
to  recover  possession  by  the  owner  of  a  vessel  wrecked  and  sold;  Bond  v. 
The  Brig  Cora,  2  Wash.  85,  2  Pet.  Adm.  379,  Fed.  Cas.  1621,  holding  owner 
of  vessel  and  not  freighter  is  entitled  to  salvage;  Waterbury  v.  Myrick, 
Blatchf.  &  H.  44,  Fed.  Cas.  17,253,  an  action  in  rem  and  personam  to  re- 
cover salvage;  The  Brig  C.  W.  Ring,  2  Hughes,  102,  Fed.  Cas.  3525,  ap- 
portioning salvage  among  owner,  master  and  crew;  Kennedy  v.  Ricker,  14 
Fed.  Cas.  321,  allowing  salvage  to  seaman;  Tyson  v.  Prior,  1  Gall.  135, 
Fed.  Cas.  14,319,  holding  amount  rests  in  sound  discretion  of  court,  and  in 
gei^eral  it  ought  to  be  not  less  than  one-third;  Row  v.  The  Brig,  1  Mason, 
377,  Fed.  Cas.  12,093,  holding  that  in  general  a  moiety  is  rule  of  salvage  in 
cases  of  derelicts,  but  that  the  rule  is  flexible,  yielding  to  circumstances; 
Kennedy  v.  Ricker,  Smith  (N.  H.),  438,  discussing  amount  of  salvage. 

Explained  in  British  Consul  v.  22  Pipes,  Bee,  180,  Fed.  Cas.  1900,  holding 
that  salvage  should  never  exceed  more  than  one-half  of  the  property  saved. 

Distinguished  in  The  Ship  Henry  Eubank,  1  Sumn.  427,  428,  Fed.  Cas. 
6376,  where  amount  of  salvage  was  discussed  and  the  court  said  it  was 
the  rule  to  allow  third. 

District  Court  having  jurisdiction  to  award  salvage  baa  jurisdiction  to 
determine  ownership  of  residue. 

Cited  in  Walker  v.  Sturbans,  38  Fed.  301,  where  court  in  adjusting 
priority  of  several  liens  directed  an  execution  to  issue  for  the  sale  of  land; 
Leland  v.  The  Ship  Medora,  2  Wood.  &  M.  114,  Fed.  Cas.  8237,  to  point 
that  if  court  properly  has  jurisdiction  and  sells  ship,  it  .may  decree  some  of 
the  funds  to  claimants  whose  claim  was  not  an  admiralty  one. 

Immediately  on  capture  of  property  captors  acquire  such  right  as  no  neutral 
nation  can  justihy  impugn  or  destroy. 

Cited  in  Hopner  v.  Appleby,  5  Mason,  75,  Fed.  Cas.  6699,  where  a  Spanish 
vessel  was  captured  by  Colombian  privateer  and  by  collusion  between  cap- 
tors and  an  American  was  wrecked  on  the  coast  of  Florida,  cargo  landed 
and  sold,  American  becoming  purchaser;  Booth  v.  L'Esperanza,  Bee,  93, 
Fed.  Cas.  1647,  where  vessels  in  distress  are  met  with  at  sea  and  brought 
into  port  of  neutral  power,  they  must  be  restored  after  payment  of  salvage; 
The  Divina  Pastora,  4  Wheat.  68,  4  L.  Ed.  616,  holding  that  captures  by 
cruisers  of  other  countries  are  regarded  as  other  captures  jure  belli,  legality 
of  which  cannot  be  determined  in  courts  of  a  neutral  country. 


25  WARE  V.  HYLTON.  3  Dall.  19d-285 

\ 

Explained  in  L'  Invincible,  1  Wheat.  268,  4  L.  Ed.  86,  holding  that  courts 
of  this  Goontry  cannot  redress  torts  on  high  seas  by  cruiser  regularly  com- 
missioned by  foreign  and  friendly  power  unless  such  cruiser  has  been  fitted 
out  in  violation  of  our  neutrality. 

Appellate  court  wUl  not  take  notice  of  iiChts  of  parties  who  have  not 
lOTMled. 

Cited  in  The  Gray  Eagle,  9  Wall.  511,  19  L.  Ed.  744,  if  owner  of  vessel 
fails  to  appeal,  presumption  is  that  vessel  is  at  fault  on  charge  of  negli- 
gence; Mail  Co.  V.  Flanders,  12  Wall.  136,  20  L.  Ed.  250,  to  point  that  no 
one  but  an  appellant  can  be  heard  in  an  appellate  court  for  reversal  of  a 
decree  rendered  in  a  subordinate  court;  Vinal  v.  Spaiford,  139  Mass.  130, 
29  N.  E.  288,  appeal  by  one  party  from  a  judgment  against  him  does  not 
reopen  judgment  in  his  favor. 

Miscellaneous.  Cited  erroneously  on  question  of  eminent  domain,  in 
Varick  v.  Smith,  9  Paige,  559,  and  State  v.  Dawson,  3  Hill  L.  111. 

3  Dall.  109-286,  1  Is.  Ed.  568,  WABE  Y.  HTLTON. 

Effect  of  Declaration  of  Independence  on  State  sovereignty. 

Cited  in  Scheible  v.  Bacho,  41  Ala.  433,  434,  and  Hubbard  v.  Harnden, 
10  R.  I.  250,  holding  southern  States  de  facto  but  not  de  jure  governments 
daring  the  Civil  War;  United  States  v.  Johnson,  25  Fed.  Cas.  1233,  holding 
daring  Civil  War  Federal  government  entitled  to  rules  as  to  belligerency. 

Citizenship  of  individuals  after  Declaration  of  Independence. 

Cited  in  Inglis  v.  Sailors'  etc.  Harbor,  3  Pet.  160,  7  L.  Ed.  639,  discuss- 
ing question  of  citizenship  for  purpose  of  inheritance. 

Declaration  of  Independence  was  of  independence  of  each  State  and  not 
States  collectively. 

Cited  in  Dred  Scott  v.  Sandford,  19  How.  502,  15  L.  Ed.  741,  in  discuss- 
ing the  status  of  African  slaves  prior  to  the  Civil  War. 

Nation  at  war  may  seize  and  confiscate  all  movable  property  of  its  enemy» 
indading  debts  due  enemy's  citizens. 

Approved  in  Hanger  v.  Abbott,  6  Wall.  537,  18  L.  Ed.  942,  remarking 
that  power  to  confiscate  debts  is  seldom  or  never  practically  exercised; 
Thompson  v.  Carr,  5  N.  H.  515,  a  land  case  where  title  was  deraigned 
through  a  confiscation  act;  Smith  v.  Brazelton,  1  Heisk.  59,  2  Am.  Eep. 
684,  examining  authorities  and  holding  that  southern  States  were  entitled 
to  this  and  other  belligerent  rights  just  the  same  as  the  United  States; 
Perkins  v.  Rogers,  35  Ind.  145,  9  Am.  Rep.  655,  -  collecting  authorities  and 
holding  statute  of  limitations  suspended  during  Civil  War;  United  States 
V.  One  Hundred  Barrels,  27  Fed.  Cas.  294,  to  point  that  alien  enemy  cannot 
sue  in  domestic  court;  dissenting  opinion  in  Brown  v.  United  States,  8  Cr. 
143,  3  L.  Ed.  516  (see  s.  c,  1  Gall.  580,  Fed.  Cas.  4479),  arguing  that 
enemy's  property  found  in  the  United  States  can  be  condemned  without 
any  legislative  act  authprizing  its  confiscation,  majority  holding  statute 
necessary. 


/ 


3  DalL  190-286  NOTES  ON  U.  S.  REPORTS.  26 

Questioned  in  Norris  v.  Doniphan,  4  Met.  (Ky.),  435,  436,  argoing  that 
the  power  to  confiscate  i^o  longer  subsists. 

ProviBlons  of  St&te  Constitutions  or  laws  In  conflict  with  treaties  althougb 
previousliy  enacted,  are  yoid. 

Approved  in  Maiorano  ▼.  Baltimore  etc.  R.  Co.,  213  U.  S.  273,  63  L.  Ed. 
795,  29  Sup.  Ct;.  424,  holding  treaty  with  Italy  did  not  give  nonresident 
alien  relatives  of  subject  of  Italy  right  of  action  for  damages  for  his  death ; 
In  re  Wyman,  191  Mass,  279,  77  N.  E.  380,  under  Russian  treaty,  Russian 
vice-consul  entitled  to  letters  in  estate  of  intestate  Russian  to  exclusion  of 
public  administrator;  Minnesota  Canal  &  Power  Co.  v.  Pratt,  101  Minn. 
232,  11  L.  R.  A.  (N,  S.)  105,  112  N.  W.  405,  holding  treaty  as  to  flow  of 
Rainy  Ri^r  controlled  right *of  diversion  by  public  service  corporation; 
Geofroy  v.  Riggs,  133  U.  S.  267,  33  L.  Ed.  645,  10  Sup.  Ct.  297,  holding 
domestic  law  of  District  of  Columbia  as  to  aliens  taking  by  descent,  sus- 
pended as  to  French  citizens  by  treaty  with  France ;  Hauenstein  v.  Lynham, 
100  U.  S.  489,  490,  25  L.  Ed.  630  (reversing  s.  c,  28  Gratt.  75),  holding 
that  Swiss  treaty,  pro  tanto,  superseded  Virginia  law  as  to  aliens  taking 
by  descent;  Little  v.  Watson,  32  Me.  225,  where  treaty  as  to  Canadian 
boundary  was  held  operative  to  divest  rights  of  Maine  claimants  protected 
by  the  State  Constitution ;  In  re  Parrott,  1  Fed.  501,  502,  6  Sawy.  369,  370, 
holding  California  statute,  forbidding  corporations  to  employ  Chinese,  in 
conflict  with  treaty  with  China;  People  v.  Dibble,  16  N.  Y.  224,  and  Fellows 
v.  Denniston,  23  N.  Y.  427,  applying  principle  to  treaties  with  Indian  tribes ; 
In  re  Race  Horse,  70  Fed.  606,  where  Wyoming  statute  J)rotecting  game  was 
held  repugnant  to  Indian  treaty  in  certain  respects;  In  re  Rabasse,  47 
La.  Ann.  1455,  49  Am.  St.  Rep.  433,  17  South.  867,  holding  French  treaty 
provision  as  to  representation  of  absent  heirs  overruled  State  statute ;  Hep- 
bum's  Case>  3  Bland  Ch.  121,  122,  discussing  the  consequences  and  history 
of  the  confiscation  laws ,  cited  simply  to  point  that  treaty  is  a  law  in  Crane 
V.  Reeder,  25  Mich.  308,  holding  one  naturalized  under  a  treaty,  naturalized 
under  a  law;  in  general  discussion,  Norris  v.  Doniphan,  4  Met.  (Ky.)  413, 
430 ;  Pollard  v.  Kibbe,'  14  Pet.  412,  10  L.  Ed.  619,  a  land  suit. 

Distinguished  in  Wunderle  v.  Wunderle,  144  111.  54,  33  N.  E.  197,  holding 
German  treaty  not  infringed  by  State  law  as  to  inheritance  by  alien. 

Treaty  guaranties  to  aliens.    Note,  16  L.  B.  A.  277. 

Treaty-making  power  may  annul  State  statutes  and  destroy  rights  acquired 
by  individuals  in  virtue  of  such  acts. 

Cited  in  Geofroy  v.*  Riggs,  133  U.  S.  267,  83  L.  Ed.  646,  10  Sup.  Ct.  297, 
discussing  treaty-making  power  in  holding  that  treaty  with  France  sus- 
pending certain  domestic  laws  of  District  of  Columbia  so  far  as  conflict- 
ing; Hauenstein  v.  Lynham,  100  U.  S.  489,  490,  25  L.  Ed.  630  (reversing 
s.  c,  28  Gratt.  75),  construing  Swiss  treaty. 

The  States  have  often  taken  private  property  for  public  use,  paying  com- 
pensation therefor. 

Cited  in  Sinnickson  v.  Johnson,  17  N.  J.  L.  145,  34  Am.  Dec.  187,  with 
remark  that  right  is  not  dependent  upon  constitutional  provisions,  but  is 


27  NOTES  ON  U.  S.  REPORTS.  3  Dall.  285-301 

an  attribute  of  sovereignty;  Varick  v.  Smith,  9  Paige,  559,  ai^endo;  dis- 
senting opinion  in  State  v.  Dawson,  3  Hill,  111,  majority  affirming  right 
to  take  property  for  streets  without  compensation. 

VTliether  court  may  declare  treaty  nnconstltutlonal,  not  decMled. 

Cited  in  Lacroix  v.  Escobal,  37  La.  Ann.  537,  noting  other  cases  where 
qaestion  raised. 

State  laws  jn  conflict  with  a  treaty  ratified  prior  to  the  Oonstltution  are 

TOld. 

Referred  to  in  Sims  v.  Irvine,  3  Dall.  464,  1  L.  Ed.  681,  case  involving 
military  land  appropriation;  Cole  v.  Madison  Co.,  Breese  (Ill.)y  1^9,  12 
Abl  Dec.  166,  holding  repeal  of  penal  law  retroacted  to  annul  pending  suits. 

Debts  not  confiscated  and  not  paid  revive  at  conclusion  of  war. 

Cited  in  Hanger  V.  Abbott,  6  Wall.  537,  18  L.  Ed.  942,  holding  period  of 
Civil  War  is  to  be  saved  from  statute  of  limitations;  Newton  v.  Bushong, 
22  Gratt.  637,  12  Am.  Bep.  559,  *where,  however,  property  was  confiscated ; 
McVeigh  v.  Bank,  26  Gratt.  200,  denying  defendant's  claim  that  war  ipso 
facto  released  debt  sued  on;  Skelley  v.  St.  Louis  etc.  B.  Co.,  176  Mo.  App. 
164,  161  S.  W.  880,  deaning  "confiscate." 

Ck>iirt8  of  United  States  adopt  law  of  nations  in  its  modem  state  of  purity. 

Cited  Ella  Warley,  Blatchf .  Pr.  207,  Fed.  Cas.  4371,  affirming  power  of 
courts  to  appraise  prize  property  and  transfer  it  to  use  of  government 
before  condemnation. 

IdBglslatlvf  acts  beyond  scope  of  legislative  power  are  void. 
CSted  in  Dale  v.  Governor,  3  Stew.  418,  collecting  cases. 

A  Constitution  of  State  is  the  fundamental  law  of  that  State. 

Approved  in  State  v.  Roach,  230  Mo.  433,  139  Am.  St.  Rep.  639, 130  S.  W.' 
694,  holding  initiative  petition  to  fix  senatorial  districts  was  for  legislative 
act  and  not  for  constitutional  amendment. 

Treaties  are  to  be  construed  under  general  rule  that  intention  of  parties 
governs. 

Approved  in  Maiorano  v.  Baltimore  etc.  R.  Co.,  216  Pa.  406,  116  Am.  St. 
Rep.  778,  65  Atl.  1078,  applying  rule  in  construing  treaty  with  Italy. 

3  DalL  285-296,  1  L.  Ed.  606,  OEYEB  Y.  MICHEIf  AND  THE  SHIP  DEK 


It  Is  mere  replacement,  to  replace  guns  of  privateer  and  substitute  new  for 
old  gun  carriages  in  ports  of  neutral.  v 

Approved  and  followed  in  Moodie  v.  The  Ship  Phoebe  Anne,  3  Dall.  319, 
1  L.  Ed.  619. 

S  DaU.  297-SOl,  1  L.  Ed.  610,  UNITED  STATES  Y.  LA  VENGEANCE. 

Information  to  forfeit  vessel  for  illegal  exportation  is  civil  cause  of  admir- 
alty and  maritime  Jurisdiction. 


3  Dall.  297-501  NOTES  ON  U.  S.  REPORTS.  28 

■ 

Approved  in  Four  Hundred  and  Forty-Three  Cans  of  Frozen  Egg  Product 
V.  United  States,  226  U.  S.  180,  57  L.  Ed.  178,  33  Sup.  Ct.  50,  referring  to 
provision  in  Pure  Food  Act  of  1906,  for  trial  by  jury;  Kirkland  v.  State,  72 
Ark.  179,  106  Am.  St.  Rep.  25,  78  S.  W.  773,  65  L.  R.  A.  76,  act  of  1899, 
providing  for  condemnation  and  summary  destruction  of  liquor  illegally 
kept  for  sale  prescribes  civil  proceeding  so  tbat  mere  preponderance  of  evi- 
dence suffices ;  Rose  v.  State,  171  Ind.  670,  17  Ann.  Gas.  228,  87  N.  E.  106, 
holding  proceeding  under  act  of  1907  for  sei^ng  intoxicating  liquors  gov- 
erned by  rules  in  civil  actions;  The  Anonymous,  1  Gall.  24,  25,  Fed.  Gas. 
444,  to  effect  that  libels  in  rem  for  violations  of  municipal  laws  are  of 
admiralty  and  maritime  jurisdiction ;  United  States  v.  Schooner  Sally,  2  Cr. 
406,  2  L.  Ed.  820,  question  of  forfeiture  of  a  vessel  under  act  of  Congress 
against  slave  trade  is  of  admiralty  and  maritime  jurisdiction ;  The  Steamer 
Missouri,  3  Ben.  515,  Fed.  Cas.  9662,  proceeding  against  vessel  under 
revenue  laws  to  recover  penalty  is  civil  case  of  admiralty  jurisdiction ;  The 
Sarah,  8  Wheat.  394,  6  L.  Ed.  644,  Whelan  v.  United  States,  7  Cr.  112,  8 
L.  Ed.  286,  and  United  States  v.  Schooner  Betsey  and  Charlotte,  4  Cr.  446, 
452,  2  L.  Ed.  674,  676,  all  holding  that  all  seizures  under  laws  of  import, 
navigation,  or  trade  on  waters  navigable  from  the  sea  by  vessels  of  ten 
or  more  tons  burden  are  civil  cases  of  admiralty  and  maritime  jurisdiction ; 
The  Samuel,  1  Wheat.  14,  4  L.  Ed.  24,  holding  that  prosecutions  under 
nonimportation  laws  are  causes  of  admiralty  and  maritime  jurisdiction; 
Novion  V.  Hallett,  16  Johns.  346,  no  action  at  common  law  lies  for  an 
illegal  capture  on  high  seas  as  prize  of  war;  The  Wave,  1  Blatchf.  &  H.  240, 
Fed.  Cas.  17,297,  United  States  courts  have  jurisdiction  over  claims  for 
salvage  upon  waters  within  the  ebb  and  flow  of  the  tide  though  within  body 
of  State ;  The  Steamship  Idaho,  29  Fed.  189, 12  Sawy.  159,  in  case  of  seizure 
place  of  seizure  and  not  that  of  commission  of  act  determines  jurisdiction; 
.United  States  v.  Burlington  etc.  Ferry  Co.,  21  Fed.  338,  340,  proceeding 
by  information  against  defendants  in  personam  charging  them,  as  owners 
and  masters,  with  violating  laws  regulating  steam  yessels;  The  Margaret^ 
9  Wheat.  428,  6  L.  Ed.  12t,  libel  for  forfeiture  under  registry  act; 
United  States  v.  One  Case  of  Silk,  4  Ben.  541,  Fed.  Cas.  15,925,  libel  against 
goods  to  forfeit  them  for  violation  of  the  revenue  laws;  United  States  v. 
Arms  and  Ammunition,  24  Fed.  Cas.  863,  holding  this  jurisdiction  exercis- 
able in  case  of  forfeiture  as  well  upon  high  seas ;  The  Meteor,  l7  Fed.  Cas. 
180,  affirming  jurisdiction  in  case  of  forfeiture  for  breach  of  neutrality; 
.  United  States  v.  Athens  Armory,  2  Abb.  (U.  S.)  143,  Fed.  Cas.  14,473,  s.  c, 
35  Qa.  357,  a  proceeding  to  enforce  a  seizure  under  confiscation  act;  Union 
Ins.  Co.  V.  United  States,  6  Wall.  766,  18  L.  Ed.  882,  to  point  that  proceed- 
ing under  confiscation  act  of  1861  should  be  conformed  to  common-law 
side  of  court;  dissenting  opinion  in  the  Confiscation  Cases,  20  Wall.  113, 
22  L.  Ed.  325,  holding  that  an  information  under  confiscation  act  of  1862 
has  substance  and  all  requisites  of  common-law  proceeding;  Waring  v. 
Clark,  5  How.  458,  12  L.  Ed.  234,  holding  that  United  States  admiralty 
and  maritime  courts  have  jurisdiction  over  cases  of  collision  in  tide  water 
on  the  Mississippi  River;  The  Eagle,  8  Wall.  26,  19  L.  £d«  370,  a  libel  for 


29  UNITED  STATES  v.  LA  VENGEANCE.    3  Dall.  297-301 

a  eolUsion  oeeurring  in  Detroit  River;  De  Lovio  t.  Boit,  2  GkiU.  474,  Fed. 
Cas.  3776,  admiralty  has  jurisdiction  over  all  maritime  contracts  whereso- 
ever executed  and  whatever  the  form  of  the  stipulations;  The  Belfast,  7 
Wall.  638,  19  L.  £d«  270,  a  proceeding  to  enforce  a  maritime  lien;  Leland 
v.  The  Ship  Medora,  2  Wood.  &  M.  109,  Fed.  Cas.  8237,  libel  for  repairs 
and  supplies;  United  States  v.  La  Vengeance,  2  Ware,  109,  Fed.  Cas.  6914, 
libel  in  personam  for  the  loss  of  goods ;  The  New  Jersey  S.  N.  Co.  v.  Mer- 
chants' Bank,  6  How.  387,  12  L.  Ed.  484,  affirming  a  judgment  upon  a  libel 
in  personam  against  a  steamboat  company  for  the  loss  of  specie;  United 
States  V.  Wiltberger,  6  Wheat.  115,  5  L.  Ed.  48,  United  States  courts  have 
no  jurisdiction  of  manslaughter  by  master  upon  a  seaman  on  merchant 
vessel  in  River  Tigris ;  United  States  v.  Ortega,  11  Wheat.  474,  6  L.  Ed.  623, 
where  person  was  indicted  for  offering  violence  to  foreign  minister ;  Roberts 
v.  Skolfield,  3  Ware,  187,  Fed.  Cas.  11,917,  an  action  for  a  joi;jt  tort  can- 
not, in  admiralty,  be  united  with  a  tort  against  one  separately;  Slocum  v. 
Wheeler,  1  Conn.  446,  to  render  judgment  of  the  District  Court  conclusive 
on  the  State  court,  District  Court  must  have  had  jurisdiction. 

Distinguished  in  People  v.  Tyler,  7  Mich.  273,  where  a  party  was  in- 
dicted for  a  murder  committed  on  an  American  vessel  in  waters  outside 
the  State  and  the  United  States. 

Criticised  in  dissenting  opinion  in  Waring  v.  Clark,  5  How.  486, 12  L.  Ed. 
447,  and  in  dissenting  opinion,  in  Jackson  v.  Steamboat  Magnolia,  20  How. 
310,  329, 15  L.  Ed.  915,  924,  both  saying  it  might  be  doubted  whether  princi- 
pal ease  was  sufficiently  considered. 

Suit  for  statutory  penalty  as  civil  or  criminal  prosecution.    Note,  27 
L.  B.  A.  (N.  S.)  754. 

Court  takes  Judiolal  notice  of  fact  that  Sandy  Hook  is  upon  water. 

Approved  in  Ex  parte  Lair,  177  Fed.  794,  holding  court  will  take  judicial 
notice  that  sea-going  vessel  carrying  emigrants  from  France  did  not  find 
port  of  entry  in  northern  district  of  Illinois ;  Hipes  v.  Cochran,  13  Ind.  177, 
where  the  court  ^ook  notice  of  facilities  of  Iraivel  in  determining  time  neces- 
sary to  travel  from  point  to  point ;  Gulf  etc.  Ry.  Co.  v.  State,  72  Tex.  409, 
13  Am.  St.  Bep.  818,  10  S.  W.  82,  where  court  took  judicial  notice  of  lead- 
ing geographical  features  of  land;  Price  v.  Page,  24  Mo.  68,  where  court 
took  notice  that  State  of  Missouri  is  east  of  the  Rocky  Mountains ;  Peyroux 
V.  Howard,  7  PeU  342,  8  L.  Ed.  707,  where  court  took  judicial  notice  of 
New  Orleans  to  determine  whether  the  tide  ebbed  and  flowed  there ;  Bruma- 
gim  V.  Bradshaw,  39  Cal.  40,  where  court  took  judicial  notice  that  the 
Potrero  in  year  1850  was  separated  from  the  city  of  San  Francisco  and 
that  it  is  now  a  portion  of  city  of  San  Francisco. 

Judicial  notice.    Note,  89  Am.  Dec.  678. 

Judicial  notice  of  geographical  facts.    Note,  12  Ann.  Gas.  927. 

Whether  in  any  case  the  costs  will  he  awarded  against  United  Statea, 
((aery* 


3  DaU.  302-306  NOTES  ON  U.  S.  REPORTS.  30 

Cited  to  point  that  costs  ard  never  awarded  against  the  United  States  in 
Hathaway  v.  Roaeh,  2  Wood.  &  M.  68,  Fed.  Gas.  6213,  an  action'  for  the 
violation  of  a  patent  in  which  court  discussed  the  allowance  of  costs. 

State's  right  to  appeal  in  criminal  case.    Note,  19  Ii..B.  A.  344* 

3  DaU.  302-304,  1  L.  Ed.  612,  COTTON  v.  WAUiACE. 

Damages  on  afflimance. 

Cited,  but  not  in  point,  in  Lewis  v.  Outlaw,  1  Overt.  143. 

Miscellaneous.  Cited  in  The  Newaygo,  205  Fed.  181,  rate  of  interest  on 
admiralty  claim's  is  that  of  the^tate  and  not  necessarily  six  per  cent. 

3  DalL  805-306,  1  L.  Ed.  613,  HUNTEB  v.  FAIBFAX'S  DEVISEES. 
Oontltfeance  because  of  death-  of  only  counsel  employed. 

Approved  in  Allen  v.  State  of  Geoi^a,  10  G^.  92,  holding  illness  of  coun- 
sel ground  for  continuance;  Borden  v.  Houston^  2  Tex.  604,  to  authorize 
reversal  for  granting  or  refusing  continuance,  it  must  appear  that  judge 
has  abused  his  discretion. 

Continuances  of  civil  causes.    Note,  74  Am.  Dec.  150. 

3  DaU.  306,  1  L.  Ed.  613,  ABCAMBEL  V.  WISEMAN. 

Counsel  fees  are  not  allowed  in  the  assessment  of  damages. 

Approved  in  Frantz  v.  Saylor,  12,  Okl.  42,  69  Pac.  795,  following  rule ; 
Lindeberg  v.  Howard,  146  Fed.  470,  in  action  on  injunction  bond  given  in 
Alaska  Territorial  Court  attorneys'  fees  expended  in  obtaining  dissolution 
of  injunction  are  not  proper  element  of  damliges;  Missouri  Pacific  Ry.  Co. 
V.  Larabee,  234  U.  S.  468,  58  L.  Ed.  1405,  34  Sup.  Ct.  979,  holding  neither 
State  court  nor  statute  could  gi^e  attorneys*  fees  to  party  prosecuting  writ 
of  error  in  Federal  court;  TuUock  v.  Mulvane,  184  U.  S.  511,  515,  46  L.  Ed. 
666,  667,  22  Sup.  Ct.  377,  379,  holding  attorneys'  fees  not  recoverable  in 
action  on  injunction  bond;  Siimpson  v.  The  Railroads,  1  Wall.  Jr.  170, 
Fed.  Cas.  13,456,  jury  cannot  allow  plaintiif  in  patent  case  as  damages  any 
expenditure  for  counsel  fees  or  other  charges  necessarily  incurred  in  vindi- 
cating his  rights ;  Whittemore  v.  Cutter,  1  Gall.  438,  Fed-  Cas.  17,600,  hold- 
ing that  in  an  action  for  violation  of  a  patent  right,  counsel  fees  were  not 
ground  of  damages ;  Pacific  Ins.  Co.  v.  Conrad,  1  Bald.  143,  Fed.  Cas.  10,647, 
holding  that  in  an  action  of  trespass  counsel  fees  were  not  recoverable; 
Jacobus  V.  Monongahela  etc.  Bank,  35  Fed.  397,  counsel  fees  and  other 
expenses  not  taxable  as  costs  in  defending  against  an  attachment  wrong- 
fully laid;  McDaniel  v.  Crabtree^  21  Ark.  434,  an  action  for  damages  for 
suing  out  of  an  injunction;  Gear  v.  Shaw,  1  Pinn.  615,  and  Oelrichs  v. 
Spain,  15  Wall.  230,  231,  21  L.  Ed.  46,  both  holding  that  attorneys'  fees 
were  not  recoverable  in  a  suit  on  an  injunction  bond;  Stringfield  v.  Hirsch, 
94  Tepn.  432,  45  Am.  St.  Rep.  737,  29  S.  W.  611,  holding  that  in  an  action 
on  an  attachment  or  injunction  bond,  attorneys'  fees  are  not  recoverable; 


31  NOTES  ON  U.  S.  REPORTS.  3  D;dl.  307-319 

\  .    ■ 

Gadsden  v.  Bank  of  Georgetown,  5  Rich.  344,  holding  that  in  a  snit  on 
an  injunction  bond  counsel  fees  were  not  recoverable. 

Denied  in  Boston  Mfg.  Co.  v.  Fiske,  2  Mason,  120,  122,  Fed.  Gas.  1681, 
in  an  action  for  infringement  of  patent  jury  could  allow  plaintiff  expenses 
for  counsel  fees  or  other  eharges  necessarily  incurred ;  Hannibal  etc.  R.  R. 
Co.  V.  Shepley,  1  Mo.  App.  257,  holding  that  in  an  action  on  an  injunction 
bond,  the  word  ''damages"  would  be  held  to  include  reasonable  attoi^neys' 
tees* 

Distinguished  in  Bucki  etc.  Lumber  Co.  v.  Fidelity  etc.  Co.,  109  Fed. 
405,  406,  408,  holding  under  Florida  statute,  attorneys'  fees  recoverable  in 
suit  on  attachment  bonds ;  Mulvane  v.  TuUock,.  58  Kan.  632,  50  Pac.  901, 
granting  attorneys'  fees  in  suit  on  injunction  bond  given  in  Federal  court; 
Wisconsin  etc.  Bank  v.  Durner,  114  Wis.  374,  90  N.  W.  436,  allowing  coun- 
sel fees. 

Recovery  on  injunction  bond  of  attorneys'  fees  necessarily  expended 
in  dissolving  injunction.    Note,  16  L.  R.  A.  (N.  S.)  60. 

3  DaU.  307,  1  L.  Ed.  614.  MOODIE  v.  THE  SHIP  ALFRED. 

Building  of  vessel  to  be  used  as  privateer,  fitting  her  with  some  of  eqaip- 
ments  used  in  war,  and  her  sale  to  belligerent  is  not  violation  of  neutrality. 

Cited  on  point  as  to  what  constitutes  outfitting  of  privateer  in  a  neutral 
Iiort,  in  The  Divina  Pastora,  4  Wheat.  69,  4  L.  Ed.  616. 

Distinguished  in  The  Meteor,  17  Fed.  Gas.  200,  condemning  vessel  fitted 
oat  in  United  States  as  violating  neutrality  with  Spain. 

3  DalL  308-318,  1  L.  Ed.  614,  OLNET  v.  ABKOU>. 

Superior  Court  of  Bliode  Island  is  highest  court  of  law  of  that  State  within 
meaning  of  twenty-fifth  section  of  judicial  act. 

Cited  in  Fleming  v.  Clark,  12  Allen,  198,  holding  that  Supreme  Court 
would  not  discharge  prisoner  convicted  in  Superior  Court,  although  writ 
of  error  had  been  issued  by  justice  of  the  Supreme  Court  of  United  States. 

What  adjudication  of  State  courts  reviewable  in  Federal  Supreme 
Court.    Note,  62  L.  R.  A.  619. 

Rejection  of  bond  for  duties  proper  where  it  appears  a  former  bond  due 
and  unsatisfied. 

Cited  in  Howland  v.  Harris,  4  Mason,  499,  501,  Fed.  Cas.  6794,  where 
question  was  as  to  liability  of  consignee  for  duties. 

3  Dall.  319,  1  la.  Ed.  618,  MOODIE  V.  THE  SHIP  PHOEBE  ANNE. 
What  is  augmentation  of  force  in  privateer. 

Cited  in  Den  Onzekeren,  3  Dall.  296,  1  L.  Ed.  610,  holding  mere  replace- 
ment of  guns  of  foreign  privateer  in  neutral  port  is  not  an  augmentation 
of  her  force,  ^ted  as'  to  what  was  not  an  illegal  outfitting  in  a  neutral 
port  in  The  Divina  Pastora,  4  Wheat.  69,  4  L.  ISd.  516,  discussing  question 
of  jurisdiction  of  Admiralty  Courts  in  cases  of  captured. 


/ 


3  Dall.  320-330  NOTES  ON  U.  S.  REPORTS,  82 

3  DaU.  820-321,  1  L.  Ed.  619,  OBATliON  T.  VIBOINXA. 

Serrlee  of  proc«M  In  motion  ftgainst  »  State. 

Approved  in  State  v.  Huston,  21  Okl.  785,  786,  97  Pac.  983,  984,  boldiug 
Govei^nor  had  power  to  institute  suit  on  behalf  of  State;  Henry  v.  State, 
87  Miss.  34,  95,  39  South.  863,  884,  under  Constitution,  Governor  cannot 
sue  in  name  of  State;  Oswald  v.  New  York,  2  Dall.  415, 1  L.  Ed.  438,  where 
the  court  made  an  order  that  unless  the  State  appeared  by  the  first  day  of 
the  next  term  or  showed  cause,  judg^OTit  would  be  entered  by  default 
against  the  State;  New  Jersey  v.  New  York,  3  Pet.  466,  7  L.  Ed.  748,  where 
the  court  did  not  require  an  ex  parte  argument  in  favor  of  their  authority 
to  grant  a  subpoena  in  a  proceeding  by  New  Jersey  against  State  of  New 
York ;  Rhode  Island  v.  Massachusetts,  12  Pet.  760,  761,  9  L.  Ed.  1276,  where 
court  held  that  if  State  shall  neglect  to  appear,  no  coercive  measures  will 
be  taken  to  compel  appearance,  bnt  complainant  will  be  allowed  to  proceed 
ex  parte ;  New  Jersey  v.  New  York,  5  Pet.  289,  290,  291,  8  L.  Ed.  129,  dis- 
cussing procedure  where  State  is  party;  Florida  v.  Georgia,  17  How.  49?, 
15  L.  Ed.  189,  permitting  attorney^  general  to  intervene  in  a  boundary  suit 
between  State;  Kentucky  v.  Dennison,  24  How.  97, 16  L.  Ed.  725,  upholding 
service  on  GK)vemor. 

Court  may  adopt  rules  to  govern  its  proceedings. 

Cited  in  In  re  Finks,  41  Fed.  386,  holding  that  the  sureties  of  a  clerk 
are  liable  for  his  misappropriation  under  an  order  of  court,  not  based  upon 
direct^  statutory  authority. 

Miscellaneous.  Cited  in  Whitford  v.  Panama  R.  Jl.  Co.,  23  N.  Y.  471, 
not  in  point. 

3  DaU.  321-330,  1  Ii.  Ed.  619,  WISOABT  ▼.  D'AUOHT. 

Finding  that  conveyance  Is  intended  to  defraud  is  finding  of  fact. 

Cited  in  Carter  v.  Carter,  5  Tex.  99,  where  necessity  of  alleging  fraudu- 
lent intent  was  considered;  Matter  of  Hissim,  3  Penr.  &  W.  166,  where 
question  was  as  to  whether  certain  conveyance  was  fraudulent. 

On  removal  of  equity  or  admiralty  to  Supreme  Court,  statement  of  facts  is 
conclusive  in  absence  of  evidence. 

Approved  in  Connor  v.  United  States,  214  Fed.  527,  131  C.  C.  A.  68, 
holding  court  had  not  absolute  discretion  to  set  aside  findings  of  master, 
but  findings  on  conflicting  evidence  were  unassailable ;  Jennings  v.  The  Per- 
severance, 3  Dall.  337,  1  L.  Ed.  626,  holding  that  statement  of  facts  sent 
up  with  record  is  conclusive;  The  Abbotsford,  98  U.  S.  442,  26  L.  Ed.  169, 
holding  findings  of  fact  by  Civil  Court  in  admiralty  cases  conclusive ;  Insur- 
ance Co.  V.  Folsom,  18  Wall.  249,  21  L.  Ed.  833,  holding  that  if  finding  of 
Circuit  Court  be  general  one  Supreme  Court  will  only  review  questions 
of  law  presented  by  bill  of  exceptions  or  apparent  on  face  of  pleadings; 
Davis  V.  Schwartz,  155  U.  S.  636,  39  L.  Ed.  293,  15  Sup.  Ct.  239,  holding 
that  in  a  case  referred  to  master,  there  is  a  presumption  of  correctness  of 
his  finding;  Walters  v.  Western  &  A.  R.  Co.,  69  Fed.  710,  master's  report 


33  WISCART  V.  D'AUCHY.  8  DaU.  321-330 

mast  be  fteoepted  by  court  in  absence  of  evidence  of  bias  or  clear  mistake ; 
United  States  Trust  Co.  v.  Mercantile  Trust  Co.,  88  Fed.  153,  holding  toas- 
ter's findings  binding  where  based  on  conflicting  evidence. 

Error  and  not  appeal  Is  proper  mode  of  reviewing  equity  and  admiralty 
causes  in  Supreme  Court. 

Approved  in  Nashville  Ry.  &  Light  Co.  v.  Bunn,  168  Fed.  865,  64  C.  C.  A. 
274,  holding  judgment  in  mortgage  foreclosure  'reviewable  on  appeal  only ; 
Gloucester  Ins.  Co.  v.  Younger,  2  Curt.  336,  Fed.  Cas.  5487,  where  practice 
of  appeal  without  evidence  on  facts  found  was  disapproved;  Gallion  v. 
McCaslin,  1  Blackf.  95,  to  point  that  in  Supreme  Court  practice  was  for 
chancery  cases  to  be  removed  thither  only  by  a  writ  of  error  with  state- 
ment of  facts;  Republic  of  Texas  v.  Smith,  DaU.  (Tex.)  409,  where  remedy 
by  appeal  was  discussed;  Cotton  v.  Wallace,  3  Dall.  304,  1  L.v£d«  613, 
arguendo. 

IMstinction  between  appeal  and  writ  of  error. 

Approved  in  Choctaw  etc.  R.  Co.  v.  Rice,  7  Ind.  Ter.  518,  104  S.  W.  821, 
and  Behn,  Meyer  &  Co.  v.  Campbell  &  Go  Tauco,  205  U.  S.  407,  61  L.  Ed. 
859,  27  Sup.  Ct.  502,  both  refusing  to  review  facts  on  writ  of  error;  Elliott 
V.  Toeppner,  187  U.  S.  334,  47  L.  Ed.  208,  23  Sup.  Ct.  136,  reversing  bank- 
ruptcy decree  on  matters  of  law ;  Munson  S.  S.  Liner  v.  Miramar  S.  S.  Co., 
167  Fed.  961,  93  C.  C.  A.  360,  holding  appeal  in  admiralty  case  opens  case 
for  trial  de  novo ;  Lewis  v.  Little,  7  Ind.  Ter.  606,  104  S.  W.  852,  dismiss-  ^ 
ing  writ  of  error  for  failure  to  join  all  parties  defendant  against  whom 
judgment  was  rendered;  Chattanooga  v.  Keith,  115  Tenn.  689,  94  S.  W.  63, 
upholding  provision  of  Chattanooga  charter  denying  right  of  appeal  from 
city  court  where  fine  does  not  exceed  ten  dollars;  Tyson  v.  Scott,  116  Va. 
252,  81  S.  E.  60,  holding  appeal  not  new  suit  under  section  2934  of  code; 
Wingfield  v.  Neal,  60  W.  Va.  113,  116  Am.  St.  Rep.  882,  9  Ann.  Cas.  982, 
lOL.  B.  A.  (N.  S.)  448,  54  S.  E.  49,  holding  appeal  from  Circuit  to  Supreme 
Court  is  beginning  of  new  suit;  Bumbalek  v.  Peehl,  95  Wis.  128,  70  N.  W. 
71,  following,  rule ;  State  v.  Jones,  7  Qa.  423,  to  effect  that  writ  of  error 
removes  nothing  for  examination  but  the  law;  United  States  v.  King,  7 
How.  865,  12  L.  Ed.  948,  holding  that  a  writ  of  error  brings  up  only  ques- 
tions of  law,  and  questions  of  fact  remain  unexaminable ;  United  States  v. 
Wonson,  1  Gall.  6,  Fed.  Cas.  16,750,  holding  that  writ  of  error  is  the  proper 
process  to  correct  errors  of  District  Court  in  common-law  actions;  Dover 
V.  Richards,  151  U.  S.  663,  664,  38  L.  Ed.  807,  14  Sup.  Ct.  454,  holding  that 
the  Supreme  Court  upon  a  writ  of  error  to  highest  court  of  a  State  cannot 
review  its  judgment  upon  question  of  fact;  dissenting  opinion  in  Styles  v. 
Tyler,  64  Conn.  472,  30  Atl.  179,  holding  that  jurisdiction  of  Supreme  Court 
relates  to  determination  of  questions  of  law  and  not  trial  and  retrial  of 
questions  of  fact;  Vanderheyden  v.  Reid,  1  Hopk.  Ch.  469,  holding  that 
by  the  practice  of  civil  law,  cause  removed  by  an  appeal  is  reheard  at  large 
upon  facts  as  well  as  law;  Howe  v.  Patterson,  5  Or.  355,  holding  that  a 
suit  in  equity  which  has  been  fully  tried  in  Circuit  Court  and  decree  therein 
rendered  must,  if  appealed,  be  tried  anew;  Lyles  v.  Barnes,  40  Miss.  609^ 

1—3 


\ 


8  DaU.  321-330  NOTES  ON  U.  8.  REPORTS.  34 

holding  that  on  appeals  from  the  County  to  the  Circuit  Court  trial  is 
not  de  novo  on  its  merits,  but  upon  record;  Ex  parte  Henderson,  6  Fla. 
289,  holding  that  appeals  may  be  taken  from  Justice's  Court  to  Circuit 
Court  and  tried  by  latter  agreeably  to  the  Constitution;  United  States  v. 
Wonson,  1  Gall.  8,  14,  Fed,  Cas.  16,750,  holding  that  where  there  has  been 
a  jury  trial  in  District  Court  there  cannot  be  a  new  trial  by  a  jury  in 
Circuit  Court;  Bishop  v.  State,  43  Tex.  400,  where  court  reversed  a  case 
for  a  clearly  erroneous  instruction,  although  excepted  to  for  first  time 
on  appeal;  Christianson  v.  Farmers'  Warehouse  Assn.,  6  N.  D.  445,  67 
N.  W.  302,  holding  an  act  providing  that  all  cases  shall  on  appeal  be  tried 
anew,  did  not  require  Supreme  Court  to  perform  any  functions  not  per- 
taining to  appellate  jurisdiction;  United  States  v.  Sawyer,  1  Gall.  102, 
Fed.  Cas.  16,227,  court  saying  that  whenever  the  decision  below  shuts  out 
evidence  necessary  for  final  decision,  no  proper  judgment  could  be  given 
without  remanding  cause  for  further  proceedings;  Barlow  v.  Daniels,  25 
W.  Va.  521,  where  constitutional  prohibition  against  retrying  a  case  tried 
by  a  jury  otherwise  than  according  to  the  common  law  was  considered; 
Merrill  v.  Petty,  16  Wall.  342,  21  L.  Ed.  449,  where  an  appeal  on  a  libel 
in  personam  was  dismissed;  Studabaker  v.  Markley,  7  Ind.  App.  369,  34 
^,  E.  607,  holding  that  in  a  proceeding  to  have  a  person  declared  of 
unsound  mind,  petitioner  can  appeal  only  as  to  costs;  Day  v.  Holland,  15 
Or.  470,  15  Pac.  859,  holding  that  on  appeal,  a  decree  until  annulled  or 
reversed  is  binding;  United  States  v.  Goodwin,  7  Cr.  110,  8  L.  Ed.  285, 
holding  that  no  writ  of  error  lies  in  United  States  Supreme  Court  to  reverse 
judgment  of  Circuit  Court  in  civil  action  which  has  been  carried  up  to 
Circuit  Court  from  the  District  Court  by  writ  of  error;  United  States  v. 
Coe,  155  U.  S.  83,  39  L.  Ed.  78,  15  Sup.  Ct.  18,  holding  that  judicial  action 
of  al)  inferior  courts  established  by  Congress  may  be  subjected  to  the 
appellate  jurisdiction  of  Supreme  Court. 

Basis  of  Supreme  Oonrt's  appellate  jurisdiction. 

Approved  in  United  States  v.  Mar  Ying  Yuen,  123  Fed.  160,  holding 
government  has  no  appeal  from  commissioner's  order  giving  Chinese  right 
to  land;  Fleming  v.  Fleming,  40  Fla.  155,  23  South.  572,  holding  appeal 
cannot  be  entered  to  day  of  same  term;  Ex  parte  France,  176  Ind.  101,  95 
N.  E.  525,  construing  power  of  Supreme  Court  to  review  decisions  of 
appellate  court;  Ex  parte  McCardle,  7  Wall.  513,  19  L.  Ed.  265,  holding 
that  jurisdiction  of  court  comes  from  the  Constitution  and  is  not  derived 
from  acts  of  Congress ;  The  Francis  Wright,  105  U.  S.  384,  26  L.  Ed.  1101, 
holding  that  actual  jurisdiction  under  Constitution  is  confined  within  such 
limits  as  Congress  sees  fit  to  prescribe;  Colorado  Cent.  Mining  Co.  v. 
Turck,  150  U.  S.  141,  37  L.  Ed.  1031,  14  Sup.  Ct.  36,  to  the  point  that 
Supreme  Court  exercises  appellate  jurisdiction  only  in  accordance  with  act 
of  Congress  on  that  subject;  Nashville  etc.  Ry.  Co.  v,  Taylor,  86  Fed.  171, 
discussing  nature  and  extent  of  Federal  jurisdiction;  Murdock  v.  City  of 
•Memphis,  20  Wall.  620,  22  L.  Ed.  439,  where  the  judicial  power  of  Supreme 
Court  of  United  States  was  discussed;  Baker  v.  Biddle,  1  Bald.  406,  Fed. 


35  /  WISCART  V.  D'AUCHY.  3  Dall.  321-^330 

Cas.  764,  holding  that  the  sixteenth  section  of  the  judiciary  act  is  a  declara- 
tory act  settling  the  law  as  to  cases  of  equity  jurisdiction  in  the  nature 
of  a  proviso,  limitation,  or  exception  to  its  exercise;  State  v.  Daugherty, 
5  Tex.  3,  4,  and  Rogers  v.  Kennaid,  54  Tex.  38,  both  construing  a  consti- 
tutional grant  of  jurisdiction  somewhat  similar;  Harris  Mfg.  Co.  v.  "Walsh, 
2  Dak.  Tr.  43,  3  N.  W.  309,  to  point  that  an  affirmative  description  of 
power  implies  a  negation  of  appellate  powers  not  comprehended  within 
it;  Curry  v.  Marvin,  2  Fla.  417,  holding  that  an  act  limiting  the  jurisdic- 
tion of  the  Supreme  Court  did  not  conflict  with  the  Constitution;  Warner 
V.  Uncle  Sam,  9  Cal.  735,  holding  that  the  failure  of  Congress  to  provide 
for  an  appeal  from  State  courts  in  civil  admiralty  cases  cannot  affect 
question  as  to  their  concurrent  original  jurisdiction;  Bamett  v.  Meredith, 
10  Gratt.  655,  where  nature  of  appellate  jurisdiction  was  considered; 
Tarborough  v.  The  State,  2  Tex.  527,  holding  an  appeal  does  not  lie  from 
award  of  District  Court  refusing  hail;  Robinson  v.  Baillieul,  2  Tex.  161, 
holding  that  no  appeal  lies  from  an  interlocutory  judgment;  Rupert  v. 
Board  of  Commrs.,  2  Idaho,  22,  2  Pac.  719,  holding  no  appeal  lies  from 
judgment  of  District  Court  upon  an  election  matter;  dissenting  opinion 
in  United  States  ex  rel.  y.  .Flidges  etc.,  3  Wall.  677,  18  L.  Ed.  113,  holding 
that  where  an«  appeal  pending  in  the  District  Court  from  a  decree  of  the 
commissioners  to  settle  California  titles  was  transferred  to  Circuit  Court, 
an  appeal  lay  to  United  States  Supreme  Court;  Dismukes  y.  Stokes,  41 
Miss.  435,  where  court  said  that  the  High  Court  of  Errors  and  Appeals 
had  such  jurisdiction  as  properly  belonged  to  such  a  court  and  held  that 
it  was  for  the  legislature  to  determine  this ;  American  Constr.  Co.  v.  Jack- 
sonville etc.  R.  R.  Co.,  148  U.  S.  378,  87  L.  Ed.  489,  13  Sup.  Ct.  761,  where 
there  were  petitions  in  alternative  for  mandamus  or  certiorari  to  United 
States  Circuit  Court  of  Appeals ;  Ex  parte  Bradley,  7  Wall.  384,  19  L.  Ed. 
221,  holding  that  mandamus  would  lie  by  United  States  Supreme  Court  to 
an  inferior  court  to  restore  an  attorney  disbarred  by  latter  court  when 
it  had  no  jurisdiction;  Ex  parte  Crane,  5  Pet.  205,  8  L.  Ed.  98,  Ivilding 
Supreme  Court  could  compel  circuit  judge  of  United  States  to  sigikbill  of 
exceptions ;  Ex  parte  Lange,  18  Wall.  205,  21  L.  Ed.  888,  holding  that  where 
prisoner  shows  he  is  held  under  Federal  judgment  without  authority 
Supreme  Court  will  by  habeas  corpus  or  certiorari  look  into  record;  Ten- 
nessee v.  Davis,  100  U.  S.  290,  25  L.  Ed,  659,  where  party  was  indicted 
for  murder  in  State  court,  and  on  his  petition  showing  he  was  an  officer 
of  United  States  in  discharge  of  his  duties,  case  was  removed  to  Federal 
courts;  dissenting  opinion  in  Williams  v.  Louisville  etc.  R.  Co.,  176  Ala. 
657,  58  South.  324,  construing  power  of  Supreme  Court  to  superintend 
Court  of  Appeals;  dissenting  opinion  in  State  v.  Thayer,  158  Mo.  62,  58 
S.  W.  18,  majority  holding  appeal  lies  from  Criminal  County  Court  to 
Supreme  Court.  * 

Distin^ished  in  Finlen  v.  Heinze,  27  Mont.  127,  69  Pac.  829,  70  Pac. 
518,  holding  Constitution  does  not  give  legislature  power  to  limit  Supreme 
Court's  appellate  jurisdiction;  People  v.  Jordan,  65  Cal.  648,  4  Pac.  686, 
holding  that  where  legislature  has  prescribed  no  means  of  taking  an  appeal. 


3  DaU.  331-336  NOTES  ON  U.  S.  REPORTS,  36 

appellate  court  has  inherent  power  to  establish  any  appropriate  means  of 
procedure. 

On  requirements  of  statement  of  seasons  of  appeal  in  equity  case. 
Note,  Ann.  Gas.  1914D,  522. 

8  Dan.  881-332,  1  I..  Ed.  823,  HtLLS  T.  BOSS. 

Apipearance  by  partnersldp  and  attorney's  authority. 

Approved  in  Taylor  v.  Felder,  3  Ga.  App.  110,  59  S.  E.  329,  holding  judg- 
ment entered  on  appearance  by  one  partner  for  partnership  binds  only 
partnership  assets;  King  v.  Nat.  Oil  Co.,  81  Mo.  App.  165,  holding  that 
notice  to  one  partner  is  notice  to  others ;  Grazebrook  v.  McCredie,  9  Wend. 
441,  where  judgment  was  entered  on  a  cognovit  by  an  attorney  as  attorney 
of  two  partners,  when  he  was  employed  by  only  one;  Lucas  ▼.  Bank  of 
Darien,  2  Stew.  319,  where  court  said  that  one  partner  may  acknowledge 
service  for  firm;  Scott  v.  Dunlop,  2  Munf.  (Va.)  356,  holding  that  if 
names  of  partners  be  omitted  in  writ  and  declaration,  and  writ  be  served 
on  person  not  named  in  either,  judgment  against  the  company  cannot  be 
sustained ;  Deniott  v.  Swain,  5  Stew.  &  P.  296,  holding  that  acknowledgment 
by  one  partner  of  service  of  process  after  dissolution  is  not  authorized; 
Beal  V.  Snedicor,  8  Port.  525,  holding  that  if  both  defendants  appear, 
advantage  cannot  be  taken  of  irregularity  of  the  service ;  Taylor  v.  Coryell, 
12  Serg.  &  R.  250,  holding  that  one  partner  may  bind  by  an  agreement 
not  under  seal  to  refer  any  partnership  matter;  Harshey  v.  Blackman, 
20  Iowa,  171,  89  Am.  Dec.  522,  holding  that  party  represented  by  an  unau- 
thorized attorney,  to  be  relieved,  must  negative  presumption  of  authority; 
Lagow  V.  Patterson,  1  Blackf.  327,  holding  that  where  in  suit  against 
four  defendants,  an  attorney  apx>eared,  the  judgment  ought  not  to  be 
arrested  merely  because  capias  had  been  executed  on  only  two  defendants ; 
Miller  v^  Ewing,  8  Smedes  &  M.  428,  holding  that  where  process  is  not 
served,  but  an  attorney  files  a  plea  to  suit,  such  plea  constitutes  an  appear- 
ance; The  Schooner  Joseph  H.  Toone,  Blatchf.  Pr.  259,  Fed.  Cas.  7542, 
to  point  that  appearance  of  owner  by  proctor  would  cure  want  of  monitioq. 
or  due  notice  to  vessel  and  would  stand  as  notice  to  the  owner. 

Distinguished  in  Clarke  v.  State  V.  R.  Co.,  136  Pa.  St.  416,  20  Atl.  563, 
holding  that  majority  of  partners  may  give  valid  warrant  of  attorney  in 
name  of  firm. 

Partner's  power  to  authorize  appearance  for  firm.    Note,  IS  Am.  Dec. 
726. 

Effect  of  judgment  on  unauthorized  appearance.    Note,  21  L.  B.  A. 
848,  849.  I 

8  DalL  888-335,  lli.  Ed.  624,  THE  GBAND  8A0HEM,  DEL  OOL  ▼.  ABNOLD. 

Cause  for  seizure  of  neutral  vessels. 

Cited  in  The  Schooner  Tilton,  5  Mason,  471,  Fed.  Cas.  14,054,  holding 
that  admiralty  has  jurisdiction  over  petitory  as  well  as  possessoiy  suits 


37         THE  GRAND  SACHEM,  DEL  COL  v.  ARNOLD.    3  Dall.  333-336  , 

to  reinstate  owners  of  ships ;  The  Delta,  Blatchf .  Pr.  135,  Fed.  Cas.  3777, 
holding  that  where  knowledge  of  blockade  exists  vessel  cannot  lawfully  " 
approach  port,  even  to  inquire  as  to  its  continuance;  Fay  v.  Montgomery, 
1  Curt.  269,  Fed.  Cas.  4709,  to  effect  that  it  is  not  enough  to  set  up  that 
vessel  was  captured  as  prize  to  bar  libel  for  marina  tort  in  seizing  vessel ; 
Bouysson  v.  Miller,  Bee,  188,  Fed.  Cas.  1709,  where  court  said  that  principal 
case  implied  that  after  condemnation  capture  would  be  regular. 

Limited  on  point  as  to  jurisdiction  of  United  States  courts  in  matters 
of  prizes  made  by  foreign  cruisers,  in  The  Invincible,  2  Gall.  38,  41,  Fed. 
Cas.  7054,  holding  that  trial  of  prizes  belongs  exclusively  to  courts  of 
country  of  captors. 

Criticised  and  explained  in  Llnvincible,  1  Wheat.  259,  261,  4  L.  Ed.  86, 
holding  that  courts  have  no  jurisdiction  to  redress  any  torts  on  high  seas 
by  cruiser  commissioned  by  foreign  and  friendly  power. 

8ei2ding  and  bringing  )k  vessel  for  fnrtlier  examination. 

Cited  in  The  Jane  Campbell,  Blatcfif .  Pr.  104,  Fed.  Cas.  7205,  holding 
that  settled  rule  is  to  require  captors  to  bring  in  for  examination  master 
and  principal  officers  and  some  of  crew. 

IdabUity  of  owners  of  privateer  for  offlceis'  miscondtict  and  amount  of 
damages. 

Cited  in  The  Amiable  Nancy,  3  Wheat.  560,  4  L.  Ed.  469,  an. action  for 
an  illegal  seizure;  British  Consul  v.  Thompson,  Bee,  142,  Fed.  Cas.  1899, 
where  there  was  no  ground  for  a  capture,  owner  could  recover  damages  and 
have  goods  restored;  The  Amiable  Nancy,  1  Paine,  119,  Fed.  Cas.  331,  hold- 
ing that  if  master  or  crew  of  privateer  exceed  their  authority,  owners 
are  Kable;  The  Schooner  Lively,  1  Gall.  322,  Fed.  Cas.  8403,  holding  that 
on  an  illegal  capture  supposed  profits  are  not  allowable  and  where  voyage 
has  not  been  lost,  freight  is  not  proper  item;  Pope  v.  Nickerson,  3  Story, 
474,  Fed.  Cas.  11,274,  where  question  was  as  to  what  law  governs  liability 
of  owners;  The  Umbria,  166  U.  S.  422,  41  L.  Ed.  1062,  17  Sup.  Ct.  617, 
The  Steamiship  Aleppo,  7  Ben.  127,  Fed.  Cas.  158,  The  Mary  J.  Vaughan, 
and  The  Steamboat  Telegraph,  2  Ben.  50,  Fed.  Cas.  9217,  all  libels  to 
recover  damages  for  collision;  New  Jersey  S.  N.  Co.  v.  Merchants'  Bank, 
6  How.  435,  12  L.  Ed.  504,  holding  owner  liable  beyond  value  of  vessel 
and  freight  if  damage  or  neglect  were  with  his  fault  or  privity;  Pacific 
Insurance  Co.  v.  Conard,  1  Bald,  143,  Fed.  Cas.  10,647,  holding  that  one 
in  possession  under  respondentia  bond  may  recover  full  value  in  trespass, 
but  cannot  recover  counsel  fees  or  expenses  of  suit;  The  Divina  Pastora, 
4  Wheat.  69,  4  L.  Ed.  516,  where  cases  on  jurisdiction  in  prize  and 
admiralty  matters  are  collated;  Moodie  v.  Harriet,  Bee,  131,  Fed.  Cas. 
9744,  as  to  amount  of  salvage  allowed  upon  the  recapture  of  ransomed 
ship;  City  of  Cincinnati  v.  Evans,  5  Ohio  St.  604,  an  action  of  trespass  for 
an  injury  to  a  building  occupied  by  the  plaintiff  resulting  in  an  inter- 
raption  to  his  business ;  Mendell  v.  Martin  White,  17  Fed.  Cas,  3,  affirming 
admiralty  jurisdiction  in  suit  in  rem  for  personal  injuries  in  collision  on 
iia\'igable  waters. 


3  Dall.  336-341  NOTES  ON  Ui  S.  REPORTS.  38 

IzregnUrity  in  attachment  is  waived  where  the  parties  ai^ee  that  proceeds 
shall  ahide  the  issue  of  litigation. 

Distinguish^  in  Manro  v.  Almeida,  10  Wheat.  487,  6  L.  Ed.  372,  holding 
that  United  States  courts  proceeding  as  courts  of  admiralty  may  issue 
attachments  to  compel  appearance. 

Miscellaneous.  Cited  in  The  Newaygo,  205  Fed.  181,  rate  of  interest 
on  admiralty  claims  is  legal  state  rate  and  not  necessarily  six  per  cent. 

3  DaU.  336-338,  1  L.  Ed.  626,  JENNINGS  T.  THE  BBIG  PEBSEVEEAKOE. 
Affirmance  of  admiralty  decree  in  absence  of  statement  of  facts. 

Cited  in  Wiscart  v.  D'Auchy,  3  Dall.  330,  1  L.  Ed.  623,  holding  that 
statement  of  facts  is  conclusive  even  if  evidence  be  sent  up  with  it; 
United  States  v.  Sawyer,  1  Gall.  102,  Fed.  Cas.  16,227,  upon  writs  of  error 
in  causes  of  equity  or  admiralty  jurisdiction,  court  cannot  examine  any 
new  evidence;  United  States  v.  Wonson,  1  Gall.  8,  Fed.  Cas.  16,750, 
holding  that  where  cause  has  been  •once  tried  by  a  jury  in  District  Court, 
there  cannot,  even  supposing  an  appeal  lay,  be  a  new  trial  by  jury  in 
Circuit  Court;  United  States  v.  Hooe,  1  Cr.  320,  2  L.  Ed.  122,  holding 
that  in  appeals  and  writs  of  error  from  courts  of  United  States  in  District 
of  Columbia,  statement  of  facts  must  accompany  transcript;  United  States 
v.  King,  7  How.  865,  12  L.  Ed.  948,  holding  -that  writ  of  error  brings 
up  only  questions  of  law,  and  questions  of  fact  remain  unexaminable ; 
Insurance  Co.  v.  Folsom,  18  Wall.  249,  21  L.  Ed.  833,  holding  that  where  a 
case  is  tried  by  a  circuit  judge  under  the  law  of  March  3,  1865,  if  finding 
be  general  one.  Supreme  Court  will  only  review  questions  of  law;  Dower 
v.  Richards,  151  U.  S.  664,  88  L.  Ed.  307,  14  Sup.  a.  454,  holding  that 
Supreme  Court  cannot,  upon  error  to  State  court  in  an  action  at  law,  review 
its  judgment  upon  question  of  fact. 

Damages  for  delay  appeals. 

Cited  in  Cotton  v.  Wallace,  3  Dall.  304,  1  L.  Ed.  613,  holding  that  where 
a  judgment  or  decree  is  affirmed  there  can  be  no  damages  awarded  except 
for  delay;  Coweta  Falls  Mfg.  Co.  v.  Rogers,  19  Ga.  421,  65  Am.  Dec.  605, 
to  the  point  that  earlier  decisions  deny  profits  as  any  part  of  damages 
to  he  compensated. 

Costs  of  printed  statement  of  case  for  use  of  Judges  cannot  be  allowed. 

Cited  in  Price  v.  Garland,  4  N.  M.  366  (Johnson's  ed.),  s.  c.,  6  N.  M. 
101,  20  Pac.  183,  holding  that  although  record  is  required  to  be  printed, 
expense  of  printing  it  and  appellant's  brief  and  the  stenographer's  fee  are 
not  proper  items  of  costs. 

8  DaU.  339-341,  1  L.  Ed.  627,  HUGEB  ▼.  SOUTH  OABOUKA. 

Where  service  of  subpoena  Is  proved  in  action  against  State,  complainant 
is  entitled  to  proceed  ez  parte. 

Cited  in  New  Jersey  v.  New  York,  6  Pet.  290,  8  L.  Ed.  129,  following 
rule. 


39  NOTES  ON  U.  S.  REPORTS.  3  Ball.  342-^64 

3  OalL  M2-843,  1 1..  Ed.  628,  OUESBKE  T.  HABWOOD. 
Costa  on  reversaL 

Cited  in  Tugman  v.  Nat.  S.  S.  Co.,  24  Blatchf.  309,  8.  c,  30  Fed.  804, 
where  there  was  an  application  to  stay  proceedings  until  certain  costs  were 
paid;  cited  as  reversing  the  judgment  of  the  Court  of  Appeals  of  Mary- 
land in  Court  v.  Vanhibber,  3  Har.  &  McH.  147. 

Liability  for  costs  of  trial  court  after  reversal  of  judgment  by  appel- 
late  court.    Note,  4  Ann.  Gas.  79. 

3  DalL  344-366^  1  K  Ed.  629,  BBOWN  ▼.  VAN  BBAAM. 

Practical  constmctlon  by  State  conrta  of  laws  of  tliat  State   will   bo 
ad]i0red  to.  ^ 

Cited  in  Thompson  v.  Phillips,  1  Bald.  284,  Fed.  Cas.  13,974,  holding  that 
the  settled  construction  of  a  State  law  by  the  highest  courts  of  a  State  is 
considered  by  the  Federal  courts  as  their  rule  of  decision;  Williams  v. 
Bank  of  Michigan,  7  Wend.  556,  where  the  power  of  one  State  to  declare 
unconstitutional  the  law  of  another  State  was  considered;  Raymond  v. 
Danbary  etc.  R.  R.  Co.,  43  Conn.  599,  holding  that  in  the  assessment  of 
damages  on  default.  Circuit  Court  would  follow  State  court. 

Questions  of  State  law  as  to  which  State  court  decisions  must  be 
followed  in  actions  originating  in,  or  removed  to,  Federal  courts. 
Note,  40  L.  B.  A.  (N.  S.)  388. 

Calculation  of  interest  on  aiBrmance. 

Cited  in  Raymond  v.  Danbury  etc.  R.  R.  Co.,  14  Blatchf.  135,  Fed.  Cas. 
11,593,  holding  that  in  an  action  of  tort  in  a  Federal  court  where  defendant 
defaults,  plaintiff  has  no  constitutional  right  to  have  damages  assessed  by 
jury. 

Damages  recoverable  by  holder  of  dishonored  foreign  bill  of  exchange. 
Note,  Ann.  Oaf.  1913A,  811,  818. 

Necessity  of  jury  to  compute  damages  on  default  judgment.  Note, 
20  L.  B.  A.  (N.  S.)  28. 

Miscellaneous.  Miscited  to  question  of  marine  tort  in  New  Jersey  Steam 
etc.  Co.  V.  Merchants'  Bk.,  6  How.  432,  12  L.  Ed.  60S. 

3  DalL  357-^364,  1  L.  Ed.  634,  FENEMOBE  ▼.  UNITED  STATEa 

Recovery  for  fraud  on  government. 

Approved  in  Gonsouland  v.  Rosoraano,  176  Fed.  487,  100  C.  C.  A.  97, 
holding  petition  stated  cause  of  action  for  damages  for  deceit;  Price  v. 
Mutual  Reserve  life  Ins.  Co.,  107  Md.  382,  68  Atl.  690,  holding  count  for 
fraudulent  procurement  of  money  by  insurer  from  insured  on  life  policy 
cofold  not  be  joined  with  counts  of  assumpsit  and  breach  of  contract: 
State  V.  Howard,  83  Vt.  17,  74  Atl.  396,  holding  State  could  recover  money 
paid  when  auditor's  approval  to  improper  claim  was  procured  by  fraud;. 


3  DaU.  365-369  NOTES  ON  U.  S.  REPORTS.  40 

Moore  v.  Mandelbaom,  8  Mich.  449,  where  money  was  received  by  the 
^atidulent  procurement  of  deed;  Byles  v.  Rowe,  64  Mioh.  631,  31  N.  W. 
467,  where  complaint  was  filed  to  set  aside  attachment  and  execution  levies 
upon  real  estate. and  for  injunction  to  prevent  due  sale;  State  v.  Phoenix 
Bank,  33  N.*  Y.  27,  holding  that  award  by  board  of  State  auditors  obtained 
on  an  ex  parte  hearing  upon  fictitious  and  groundless  claim  may  be 
impeached. 

The  right  to  waive  tort  and  sue  on  assumpsit.    Note,  1S4  Am.  St.  Rep. 
194. 

3  DaU.  366-369,  lli.  Ed.  638,  BROWN  v.  BABBY. 

Bepealing  act  and  Suspending  act  passed  at  same  session  take  effect  at 
tbe  same  time. 

Approved  in  Pepin  Township  v.  Sage,  129  Fed.  662,  64  C.  C.  A.  160. 
applying  rule  under  Minnesota  act  of  1894  to  act  repealing  special  act 
creating  village;  Blackwell  v.  Bank  of  Albuquerque,  10  N.  M.  566,  63 
Pac.  47,  construing  delinquent  tax  act;  Pennsylvania  R.  Co.  v.  Phila- 
delphia County,  220  Pa.  119,  15  L.  R.  A.  (N.  S.)  108,  68  Atl.  685,  con- 
struing together  railway  incorporating  act,  and  supplement  enacted  on 
same  day;  Proudfit  v.  Murray,  1  Call  (Va.),  403,  holding  that  the  act  of 
Virginia  of  1748,  relative  to  bills  of  exchange,  did  not  cease  until  November, 
1793,  notwithstanding  the  act  of  1792,  upon  the  subject ;  Heinssen  v.  State, 
14  Colo.  235,  23  Pac.  997,  holding  that  when  the  suspension  of  a  general 
law  within  a  city  results  from  a  city  ordinance,  repeal  of  ordinance  leaves 
general  law  in  force;  Adam  v.  Wright,  84  Qa.  724,  11  S.  E.  895,  where 
an  act  relating  to  the  payment  of  certain  insolvent  criminal  costs  was 
repealed  by  an  act  which  was  itself  repealed  before  it  became  operative; 
Missouri  etc.  Ry.  Co.  v.  Shannon,  100  Tex.  397,  10  L.  R.  A.  (N.  S.)  681, 
100  S.  W.  146,  arguendo. 

Construction  together  of  contemporaneous  statutes  in  pari  materia. 
Note,  18  Ann.  Gas.  424. 

Acts  in  derogation  of  common  law  are  strictly  construed. 

Approved  in  Whitfield  v.  Aetna  Life  Ins.  Co.,  144  Fed.  360,  under  Rev. 
Stats.  Mo.  1899,  §  7896,  suicide  of  insured,  whether  sane  or  insane,  does 
not  avoid  policy  unless  act  contemplated  at  time  of  application  for  policy ; 
White  etc.  Pub.  Co.  v.  Apollo  Co.,  139  Fed.  432,  construing  copyright 
act;  Chauncey  v.  Dyke  Bros.,  119  Fed.  17,  construing  acts  Ark.  1895, 
p.  217,  §  3,  relative  to  priority  of  mechanics'  liens ;  Johnson  v.  Southern 
Pac.  Co.,  117  Fed.  466,  construing  act  of  March  2,  1893,  relative  to  use  of 
automatic  couplers;  Watts  v.  Dull,  184  111.  90,  56  N.  E.  305,  construinj^ 
Illinois  adoption  act;'Stames  v.  Hill,  112  N.  C.  20,  16  S.  E.  1017,  where 
question  was  whether  rule  in  Shelley's  Case  had  been  abrogated;  Furgeson 
V.  Jones,  17  Or.  217,  11  Am.  St.  Rep.  818,  20  Pac.  849,  where  statute 
relating  to  adoption  was  construed;  Liogan  v.  Logan,  77  Ind.  562,  where 
an  act  authorizing  married  woman  to  sue  in  her  own  name  was  considered ; 


41  BROWN  V.  BARRY.  3  Dall.  365-369 

dissenting  opinion  in,  Sires  v.  Melvin,  135  Iowa,  480,  481,  113  N.  W.  113, 
114,  majority  upholding  statute  relating  to  adoption. 

Intention  of  legldatnre  when  discoTered  mnit  prevail  in  construction  of 
itfttntes. 

Approved  in  In  re  Lands  of  Five  Civilized  Tribes,  199  Fed.  824,  con- 
struing allotment  of  Indian  lands;  Je&ceys  v.  Huston,  23  Ida.  379,  129 
Pae.  1068,  construing  appropriation  bills  relating  to  same  subject;  Lane 
V.  Commissioners  of  Missoula  Co.,  6  Mont.  475,  13  Pac.  137,  construing 
act  regulating  sheriffs'  fees  for  boarding  prisoners;  Beckman  v.  Hudson 
River  W.  S.  Ry.  Co.,  35  Fed.  9,  where  acts  creating  the  District  Courts  in 
New  York  were  under  consideration;  Henry  v.  Trustees,  48  Ohio  St.  676, 
30  N.  E.  1124,  construing  an  act  authorizing  tq^mi  trustees  to  acquire  lands 
for  cemetery ;  Quebec  BiVnk  v.  Carroll,  1  8.  D.  4,  44  N.  W.  724,  construing 
statute  relating  to  appeals. 

Ptoof  of  piotest  for  nonacceptance  of  foreign  bill  of  exchange  is  not  necea- 
nry  in  action  for  nonpayment. 

Cited  in  Bead  v.  Adams,  6  8eig.  &  R.  357,  358,  359,  following  rule; 
Clarke  v.  Russell,  3  Dall.  424, 1  L.  Ed.  664,  an  action  on  bill  of  exchange ; 
Hodgson  V.  Turner,  1  Cr.  C.  C.  75,  Fed.  Cas.  6570,  where  instruction  to 
effect  that  such  notice  must  be  proved  was  refused ;  Bradshaw  v.  Hubbard, 
1  Gilm.  395,  holding  that  in  suit  by  indorsees  against '  their  immediate 
indorsers  for  nonpayment,  proof  of  nonpayment  and  notice  are  sufficient 
to  sustain  the  action. 

Explained  in  United  States  v.  Barker,  4  Wash.  469,  Fed.  Cas.  14,520, 
where  it  was  held  that  notice  of  nonacceptanee  of  a  bill  of  exchange  must 
be  given  without  awaiting  maturity  of  the  bill ;  Duncan  v.  Course,  1  Mill. 
(S.  C.)  103,  holding  that  if  foreign  bill  be  not  protested  for  nonaccept- 
anee, though  notice  be  given  of  its  being  dishonored,  holder  discharges 
indorser. 

Criticised  in  CuUum  v.  Casey,  9  Port.  134,  88  Am.  Dec.  304,  holding 
that  protest  is  only  competent  evidence  of  the  nonacceptanee  of  a  foreign 
bill;  Thompson  v.  Cumming,  2  Leigh  (Va.),  324,  327,  holding  that  in  an 
action  against  indorser  of  a  foreign  bill  it  is  necessaiy  to  prove  due  notice 
to  him  of  dishonor  of  bill  by  nonacceptanee. 

Protest  as  evidence.    Note,  96  Am.  Dec.  604. 

In  an  action  on  foreign  bill  of  excliange,  failure  to  allege  valne  of  money 
if  cured  ty  verdict. 

Cited  in  Howe  v.  Nickerson,  14  Allen,  406,  in  an  action  by  a  seaman 
under  a  contract  executed  in  a;  foreign  country,  value  of  the  foreign 
money  must  be  ascertained  in  American  money  in  rendering  judgment; 
in  the  note  to  Gay  v.  Joplin,  4  McCrary,  464,  13  Fed.  654,  the  omission 
to  aver  value  of  foreign  money  in  an  action  on  a*  bill  of  exchange  is  cured 
by  verdict. 


3  Dall.  369-370  NOTES  ON  U.  S.  REPORTS.  42 

3  DaU.  368-370,  1  I..  Ed.  6i0,  EMOBY  V.  GBEENOUGH. 

Debt  is  not  diacliarged  by  dlscliarge  In  bankruptcy  in  another  State. 

Approved  in  Pugh  v.  Bussell,  2  Blackf .  397,  400,  holding  that  discharge , 
in  bankruptcy  has  no  extraterritorial  effect;  Cook  v.  Moffatt,  5  How.  316, 
.12  L.  Ed.  169,  holding  that  contract  made  in  New  York  is  not  affected  by 
a  discharge  in  Maryland;  Smith  v.  Smith,  2  Johns.  241,  242,  S  Am.  Dec. 
413,  414,  applying  principle  in  case  of  a  debtor  residing  in  Rhode  Island 
giving  his  note  dated  in  Massachusetts,  the  suit  being  brought  in  New 
York;  Mitchell  v.  McMillan,  3  Mart.  (0.  S.)  684,  6  Am.  Dec.  694,  holding 
that  proceedings  in  bankruptcy  in  a  foreign  country  cannot  affect  the 
rights  of  citizens  under  contracts  made  here;  Towne  v.  Smith,  1  Wood. 
&  M.  127,  133,  Fed.  Gas.  14,115,  holding  that  if  party  be  discharged  in 
any  State  where  insolvent  system  exists,  discharge  is  good  elsewhere,  but 
if  contract  is  made  or  to  be  performed  abroad  such  discharge  is  not  bar; 
Le  Roy  v.  Crowinshield,  2  Mason,  162,  Fed.  Gas.  8269,  discharge  under 
bankruptcy  laws  of  place  of  contract  is  good  discharge  in  every  other 
place;  Blanchard  v.  Russel,  13  Mass.  9,  7  Am.  Dec.  112,  and  Walsh  v. 
Nourse,  5  Binn.  385,  both  discussing  effect  6f  discharges  in  bankruptcy; 
Fanning  r.  Consequa,  17  Johns.  519,  8  Am.  Dec.  /444,  holding  that  con- 
tract is  to  be  interpreted  according  to  law  of  the  place  where  executed. 

Jurisdiction  dependent  upon  diverse  citisenship  must  affirmatively  appear 
in/  procesB. 

Approved  in  Hill  v.  Walker,  167  Fed.  246,  92  G.  C.  A.  633,  holding  com- 
plaint prima  facie  showed  court  had  jurisdiction ;  Gamp  v.  Wood,  10  Watts, 
122,  holding  that  it  is  essential  to  judgment  of  a  Justice's  Gourt  for  sum 
exceeding  one  hundred  dollars  that  it  should  appear  that  parties  appeared 
in  person  and  confessed  judgment;  Morrison  v.  Bennet,  1  McLean,  330, 
Fed.  Gas.  9843,  where  declaration  averred  that  plaintiff  was  citizen  of  New 
York,  one  defendant  a  citizen  of  Ohio,  and  the  writ,  which  had  also  issued 
against  another,  was  returned  non  est,  etc.,  no  averment  being  made  of  his 
citizenship. 

Translation  from  Hnbenu  upon  subject  of  law  govem^g  contracts  was 
read  in  argument. 

This  translation  has  been  referred  to  in  the  following  authorities:  Han- 
rick  V.  Andrews,  9  Port.  27;  Ford's  Curator  v.  Ford,  2  Mart.  (N.  S.)  577, 
14  Am.  Dec.  203;  Depau  v.  Humphreys,  8  Mart.  (N.  S.)  8;  Miles  v. 
Oden,  8  Mart.  (N.  S.)  223,  19  Am.  Dec.  182;  Broh  v.  Jenkins,  9  Mart. 
(O.  S.)  552,  18  Am.  Dec.  321;  Morris  v.  Eves,  11  Mart.  (0.  S.)  732;  Winny 
V.  Whitesides,  1  Mo.  475;  Edmondson  v.  Ferguson,  11  Mo.  345;  Thurston 
V.  Rosenfeld,  42  Mo.  479,  97  Am.  Dec.  352;  Varnum  v.  Gamp,  13  N.  J.  L. 
335,  25  Am.  Dec.  484,  485;  Whitford  v.  Panama  R.  R.  Co.,  23  N.  Y.  471; 
Guillander  v.  Howell,  35  N.  Y.  658;  Caldwell  v.  Maxwell,  2  Overt.  106, 
108;  Fitch  v.  Remer,  1  Flipp.  17,  Fed.  Gas.  4836. 


•. 


43  NOTES  ON  U.  S.  REPORTS.  3  Dall.  371-382 

3  JHSL  371-377,  1  L.  EcL  642,  HAMTLTOir  ▼.  MOOBE. 

Writ  of  error  tested  of  term  preceding  that  to  which  it  is  made  retumahle. 

Cited  in  Janes  v.  May,  Hempst.  289,  Fed.  Gas.  7206c,  where  writ  was  non- 
prossed, because  of  term  intervening  between  issuing  of  writ  and  filing 
record  and  writ ;  Grigsby  v.  Purcell,  99  U.  S.  506,  507,  25  L.  Ed.  854,  where 
court  said  that  an  attempt  seemed  to  have  been  made  in  Wood  v.  Lide, 

4  Or.  180,  2  L.  Ed.  588,  to  adopt  a  less  stringent  rule,  but  that  uniform 
current  of  decisions  since  was  all  other  way ;  State  v.  Kennedy,  18  N.  J.  L. 
26,  holding  that  service  of  a  writ  of  certiorari  after  its  return  day  is  void 
and  error  cannot  be  cured  by  rule  of  court. 

3  DalL  878-382,  1  I..  Ed.  644,  HOLUNOSWO&TH  ▼.  VIBGINIA. 
President  need  not  approve  an  amendment  to  Constitution. 

Approved  in  Warfield  v.  Vandiver,  101  Md,  117,  60  Atl.  642,  constitu- 
tional amendment  need  not  be  presented  to  Oovernor  before  submission 
to  people;  Ricdardson  v.  Young,  122  Tenn.  533, 125  S.  W.  678,  Governor  not 
required  to  approve  of  joint  resolution ;  State  ex  rel.  v.  Secretary  of  State, 
43  La.  Ann.  655,  9  South.  798,  holding  that  it  settled  that  such  propositions 
did  not  require  executive  approval;  In  re  Senate  File  31,  25  Neb.  873,  41 
K.  W.  983,  where  validity  of  a  proposed  amendment  was  under  discussion ; 
State  v.  Dahl,  6  N.  D.  83,  68  N.  W.  419,  holding  legislative  resolution 
respecting  constitutional  convention  need  not  be  signed  by  Governor. 

Necessity  of  approval  by  executive  of  proposed  constitutional  amend- 
ment.   Note,  4  Ann.  Cas.  703. 

Effect  of  eleventh  amendment. 

Approved  in  Alabama  etc.  School  v.  Addler,  144  Ala.  557,  42  South.  117, 
judgment  against  Alabama  Girls'  Industrial  Sehool  is  void  for  want  of 
jurisdiction,  as  judgment  against  State;  Commonwealth  v.  Griest,  196 
Pa.  St.  412,  46  Atl.  509,  holding  Governor's  approval  not  necessary  to  sub- 
mission of  constitutional  amendment ;  Crisholm  v.  State  of  Georgia,  2  Dall. 
480, 1  Ii»  Ed.  466,  where  judgment  had  been  rendered  and  a  writ  of  inquiry 
awarded,  but  writ  having  never  been  executed,  this  cause  with  others  was 
swept  from  record;  Hans  v.  Louisiana,  134  U.  S.  11,  33  L.  Ed.  846,  10 
Sup.  Ct.  506,  eleventh  amendment  superseded  all  suits  pending  and  pre- 
vented institution  of  new  suits;  McElvain  v.  Mudd,  44  Ala.  74,  76,  where 
question  was  as  to  effect  of  emancipation  declaration  upon  note  given  for 
slaves;  Buckner  v.  Street,  7  Ba.ik.  Reg.  267,  s.  c,  1  Dill.  259,  Fed.  Cas. 
2098,  holding  that  right  of  action  on  slave  contract  does  not  survive  thir- 
teenth amendment;  Ex  parte  Poulson,  19  Fed.  Cas.  1207,  act  of  1831,  de- 
prived Federal  court  of  power  to  punish  for  contempt  one  publishing 
article  prejudicing  rights  of  party  to  suit;  Johnson  v.  Tompkins,  1  Bald. 
598, 13  Fed.  Cas.  852,  Fed.  Cas.  7416,  an  amendment  may  control  the  pro- 
visions of  the  Constitution  authorizing  power  to  be  exercised  by  declara- 
tion tbat  it  shall  not  give  such  power;  Bains  v.  Schooner  James,  1  Bald. 
561,  2  Fed.  Cas.  419,  Fed.  Cas.  756,  holding  that  seventh  amendment  to 
Constitution  excludes  jurisdiction  of  admiralty  over  eontracts  regulated 


3  Dall.  382-384  NOTES  ON  U.  S.  REPORTS.  44 

by  common  law;  dissenting  opinion  in  Livingston  v.  Story,  11  Pet.  397, 
9  L.  Ed.  764,  where  phrase  "nothing  in  this  act  shall  be  so  construed"  was 
interpreted;  Ex  parte  Alabama,  52  Ala.  236,  23  Am.  Rep.  572,  and  Bay 
City  etc.  R.  R.  Co.  v.  Austin,  21  Mich.  414,  both  holding  that  repeal  of 
statute  defeats  right  to  recovery ;  Roberts  v.  The  State,  2  Overt.  425,  holding 
that  repeal  of  penal  statute  without  saving  clause  pardons  all  offenses 
committed  befoi'e;  Rhode  Island  v.  Massachusetts,  12  Pet.  731,  9  L.  Ed. 
1263,  where  the  court  said  eleventh  amendment  left  exercise  of  jurisdiction 
over  controversies  between  States  as  free  as  it  had  been  before;  United 
States  V.  Lee,  106  U.  S.  242,  27  L.  Ed.  189,  1  Sup.  Ct.  279,  where  doctrine 
that,  except  where  Congress  has  provided,  the  United  States  cannot  be 
sued,  was  affirmed ;  Governor  of  Georgia  v.  Madrazo,  1  Pet.  122,  7  L.  Ed. 
79,  and  State  ex  rel.  v.  Doyle,  40  Wis.  202,  205,  both  holding  that  where 
an  officer  is  sued  in  his  official  capacity  to  affect  the  right  of  the  State, 
the  State  is  real  defendant;  Dudley's  Case,  7  Fed.  Cas.  1151,  construing 
proviso  of  bankrupt  law;  dissenting  opinion  in  South  Dakota  v.  North 
Carolina,  192  U.  S.  331,  24  Sup.  Ct.  281,  majority  upholding  Supreme 
Court's  jurisdiction  over  action  by  one  State  against  another  to  enforce 
payment  of  bonds  of  such  other  State  which  are  specifically  secured  bj'^ 
shares  of  stock  belonging  to  debtor  State  by  ordering  foreclosure  of 
security. 

Distinguished  in  Central  of  Georgia  Ry.  Co.  v.  Railroad  Comsn.,  161  Fed. 
975,  holding  rule  did  not  apply  to  suit  to  enjoin  officers  of  State  from 
enforcing  void  statute;  Buckingham  v.  Granville  Alexandria  Soc,  2  Ohio, 
367,  where  question  was  as  to  effect  of  change  in  or  repeal  of  law  relating 
to  judgments  and  executions. 

3  J>all.  382-384,  1  K  Ed.  646,  BINQHAM  ▼.  CABOT. 

To  glYB  Circuit  Court  Jurisdiction,  it  is  necessary  to  set  fortb  citlBensliip 
of  parties.  . 

Approved  in  Butterfield  v.  Miller,  195  Fed.  204,  115  C.  C.  A.  152,  holding 
bill  for  attachment  showed  diversity  of  citizenship  to  give  jurisdiction; 
Stephens  V.  Smartt,  172  Fed.  475,  holding  complaint  failed  to  show  di- 
versity of  citizenship  to  give  jurisdiction;  Hill  v.  Walker,  167  Fed.  246,  92 
C.  C.  A.  633,  holding  complaint  prima  facie  showed  court  had  jurisdiction ; 
Philadelphia  etc.  R.  R.  Co.  v.  Quigley,  21  How.  216,  16  L.  Ed.  78,  failure 
to  make  averment  is  fatal  to  jurisdiction;  Wood  v.  Wagnon,  2  Cr.  9, 
2  L.  Ed.  191,  where  judgment  was  reversed  because  it  did  not  appear  par- 
ties were  residents  of  different  States;  Dred  Scott  v.  Sandford,  19  How. 
402,  473,  15  L.  Ed.  699,  728,  Brown  v.  Keene,  8  Pet.  115, 116,  8  L.  Ed.  886, 
and  Ingraham  v.  Arnold,  1  J.  J.  Marsh.  407,  all  to  point  that  case  must 
plainly  and  by  positive  averments  upon  record  be  brought  within  juris- 
diction; Childress  v.  McG«hee,  Minor,  133,  in  courts  of  limited  jurisdiction, 
facts  or  circumstances  which  give  jurisdiction  must  appear  on  record; 
Turner  v.  Enrille,  4  Dall.  8,  1  L.  Ed.  718,  holding  that  if  jurisdiction  de- 
pends upon  fact  that  parties  are  residents  of  different  States,  it  must  so 
appear;  Brown  v.  Noyes,  2  Wood.  &  M.  80,  Fed.  Cas.  2023,  where  plaintiff 
was  described  as  citizen  of  Rhode  Island  and   defendants  as  citizens  of 


\ 


45  BINGHAM  v.  CABOT.  3  DaU.  382-384 

Massaehnsetts ;  Abercrombie  y.  Dupuis,  1  Cr.  343,  2  L.  Ed.  130,  holding  a 
description  of  the  defendant  as  "Charles  Abercrombie  of  the  district  of 
Georgia,  Esquire,"  was  not  suffioient;  Berlin  v.  Jones,  1  Woods,  639,  Fed. 
Cas.  1343,  construing  averment  that  party  defendant  was  citizen  of  south- 
em  district  of 'Alabama;  Grace  v.  American  Cent.  Ins.  Co.,  109!  U.  S.  284, 
285,  27  L.  Ed.  935,  3  Sup.  Ct.  211,  averment  that  parties  reside,  or  t'hat 
firm  does  business  in  particular  State  not  sufficient;  Stuart  v.  JSaston,  156 
U.  S.  47,  89  L.  Ed.  341,  15  Sup.  Ct.  268,  averment  that  plaintiff  is  a  "citizen 
of  London,  England,"  not  sufficient;  Course  v.  Stead,  4  Dall.  26,  1  L.  Ed. 
726,  where  there  was  a  supplemental  bill  by  a  new  party  not  described; 
Bors  V.  Preston,  111  U.  S.  263,  28  L.  Ed.  422,  4  Sup.  Ot.  412,  holding  that 
alienage  is  not  to  be  presumed  from  fact  that  one  is  foreign  consul;  Bank 
of  United  States  v.  Moss,  6  How.  37,  12  L.  Ed.  334,  holding  court  would 
presume  evidence  of  jurisdiction  to  have  been  given ;  dissenting  opinion  in 
McNutt  V.  Bland,  2  How.  20,  24,  11  L.  Ed.  168,  165,  where  Governor  and 
party  sued  were  citizens  of  same  State,  but  not  party  for  whose  use  suit 
was  brought :  Heyer  v.  Burger,  1  Hoff.  Ch.  17,  holding  defect  may  be  taken 
advantage  of  upon  appeal;  Speigle  v.  Meredith,  4  Bliss.  126,  Fed.  Cas. 
13,227,  holding  that  if  bill  fails  to  show  jurisdiction  it  will  be  bad  on  de- 
murrer and  any  decree  would  be  liable  to  reversal;  Donaldson  v.  Hazen, 
Hemp.  424,  Fed.  Cas.  3984,  holding  omission  may  be  taken  advantage  of 
by  motion  to  dismiss,  by  motion  in  arrest,  or  by  writ  of  error ;  Morrison  v. 
Bennet,  1  McLean,  330,  Fed.  Cas.  9843,  on  the  same  point ;  Burrow  v.  Dick- 
son, 4  Fed.  Cas.  840,  holding  jurisdiction  appearing  on  any  part  otf  the 
record  sufficient  after  judgment;  Florence  Sewing  Machine  Co.  v.  Grover 
etc.  Co.,  110  Mass.  81,  where  there  was  a  petition  to  remove  cause  because 
of  diverse  citizenship;  Beebe  v.  Armstrong,  11  Mart.  (0.  S.)  441,  and  Mer- 
chants' Nat.  Bank  v.  Brown,  4  Woods,  264,  s.  c,  17  Fed.  161,  both  holding 
that  a  petition  for  removal  of  cause  must  aver  that  parties  are  citizens  of 
different  States ;  dissenting  opinion  in  Beerbower  v.  Miller,  30  Neb.  181,  47 
N.  W.  2,  holding  that  right  of  nonresident  to  remove  a  cause  is  limited  by 
the  amount  in  dispute;  cited  generally  as  to  removal  of  causes  in  Jim 
(a  slave)  v.  The  State,  3  Mo.  168 ;  Marshall  v.  Baltimore  etc.  R.  R.  Co.,  16 
How.  340,  14  L.  Ed.  964,  holding  that  a  citizen  of  Virginia  may  sue  a  rail- 
road corporation  in  the  Circuit  Court;  North  River  S.  N.  Co.  v.  Hoffman,  5 
Johns.  Ch.  303,  holding  that  where  corporation  is  plaintiff,  it  must  appear 
that  all  persons  jointly  interested  are  entitled  to  sue  in  United  States 
courts ;  Bank  of  Cumberland  v.  Willis,  3  Sumn.  473,  Fed.  Cas.  885,  holding 
that  to  entitle  corporation  to  sue  in  Circuit  Courts,  all  members  must  be 
citizens  of  some  State  other  than  that  of  defendant;  Shaw  v.  Quinoy  M. 
Co.,  146  U.  S.  447,  36  L.  Ed.  770, 12  Sup.  Ct.  936,  holding  corporation  incor- 
porated in  one  State  only,  and  having  usual  place  of  business  in  another 
State,  cannot  be  sued  in  a  Circuit  Court  held  in  latter  place,  by  citizen  of 
different  State;  Ducat  v.  City  of  Chicago,  48  111.  176,  95  Am.  Dec.  531,  where 
question  was  as  to  whether  corporation  was  a  citizen;  Allen  v.  Blunt,  1 
Blatchf .  485,  Fed.  Cas.  215,  holding  that  in  actions  under  patent  laws,  juris- 
diction of  Circuit  Court  does  not  depend  upon  citizenship  but  upon  subject 
matter;  Homthall  v.  The  Collector,  9  Wall.  565,  19  L.  Ed.  562,  holding  that 


3  DaU,  384^01  NOTES  ON  U.  S.  REPORTS.  46 

jurisdiction  between  citizens  of  same  State  in  internal  revenue  eases  had 
been  taken  away  from  Federal  courts ;  Camp  v.  Wood,  10  Watts,  122,  where 
principle  that  jurisdiction  must  appear  was  applied  to  justice's  judgment; 
Duryee  v.  Webb,  8  Fed.  Cas.  139,  arguendo. 

Distinguished  in  Oakey  v.  Commercial  &  R.  R.  Bank,  14  La.  517,  518, 
holding  that  in  petition  to  remove  cause,  court  cannot  inquire  into  truth  of 
allegations  jn  petition;  Prentiss  v.  Barton,  1  Brock.  392,  Fed.  Cas.  11,384, 
where  question  was  as  to  what  constituted  citizenship  in  another  State. 

Miscellaneous.  Cited  in  Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149,  31 
Pac.  990,  consent  cannot  give  jurisdiction;  miscited  in  Magill  v.  Brown,  16 
Fed.  Cas.  419. 

3  DaU.  384-385,  1  L.  Ed.  647,  JONES  ▼.  US  TOMBE. 
Personal  liability  of  public  ol&cer  on  contract. 

Approved  in  Armour  v.  Roberts,  151  Fed.  852,  holding  collector  of  in- 
ternal revenue  hot  personally  liable  for  inheritance  tax  wrongfully  col- 
lected; Doming  v.  Bullitt,  1  Blackf.  242,  where  it  was  said  that  term 
''agent"  is  merely  descriptive  of  obligor;  Passmore  v.  Mott,  2  Binn.  202, 
holding  that  secretary  of  an  incorporated  company  who  as  such  signs  lottery 
ticket  is  not  personally  responsible  to  holder;  Aven  v.  Beckom,  11  Ga.  6, 
where  an  administrator  selling  slave  was  held  personally  liable  on  warranty ; 
Balcombe  v.  "Northup,  9  Minn.  177,  holding  that  where  public  officer  makes 
contract  fairly  within  scope  of  his  authority  presumption  is  he  made  it 
officially;  Yulee  v.  Canova,  11  Fla.  47,  where  question  was  as  to  liability  of 
an  impressing  officer  during  Civil  War;  Seidle  v.  Peschkaw,  27  N.  J.  L.  430, 
holding  that  an  agent  who  is  authorized  to  accept  for  his  principal  and  ap- 
propriates the  avails  of  the  acceptances  is  liable  on  an  implied  contract; 
Brown  v.  Rundlett,  15  N.  H.  364,  wh^re  at  attempt  was  made  to  charge  a 
highway  surveyor  personally  with  the  price  of  certain  gravel;  Underbill  v. 
Gibson,  2  N.  H.  356,  9  Am.  Dec.  86,  where  agent  of  public  corporation  mak- 
ing promise  in  writing  without  authority,  was  held  personally  liable. 

Distinguished  in  Comparet  v.  Burr,  5  Blackf.  420,  holding  that  trover 
would  lie  for  drafts  drawn  upon  fund  commissioners. 

Officer's  liability  on  contracts  made  for  public.    Note,  15  L.  B.  A.  512. 

Liability  of  one  signing  contract  in  representative  capacity.    Note,  42 
L.  R.  A.  (N.  S.)  28. 

Exemption  and  privileges  of  consuls.    Note,  45  L.  B.  A.  681. 

3  BaU.  38&-401,  1  L.  Ed.  648,  CAIJ>E&  ▼.  BXJLL. 

Ex  post  facto  laws  within  the  prohibition  of  the  national  Oonstitntion  do 
not  include  retroq^ectiye  laws  civU  in  their  nature,  but  criminal  laws  only, 
as  follows:  (1)  Every  law  that  makes  an  action  done  before  the  passing  of 
the  law,  and  which  was  innocent  when  done,  criminal;  and  ponishes  such  action. 
(2)  Every  law  that  aggrayates  a  crime  or  makes  it  greater  than  it  was  when 
committed,    (3)  Every  law  that  changes  the  punishment  and  inlUcts  a  greater 


47  CALDEE  v.  BULL.  3  Dall.  386-401 

■ 

panidiment  tlum  the  lav  azmes^ed  to  the  crime  when  committed.  (4)  Every 
law  that  alters  the  legal  rules  of  evidence,  and  receires  less  or  different  testi- 
mony than  the  law  required  at  the  time  of  the  commission  of  the  offense,  in 
order  to  convict  the  offender.  Laws  which  mitigate  the  punishment  are  not 
within  the  prohibition. 

In  addition  to  the  definition  of  ex  post  facto  laws  given  by  Justice  Chase, 
the  following  are  among  the  most  important  attempts  at  a  definition  of  the 
term :  Blackstone  thus  characterizes  it :  "When,  after  an  action'  (indiiferent 
in  itself)  is  committed,  the  legislature  for  the  first  time  declares  it  to  have 
been  a  crime,  and  inflicts  a  punishment  upon  the  person  who  has  committed 
it."  It  is  thus  referred  to  in  the  Federalist,  No.  84,  "The  creation  of  crimes 
after  the  commission  of  the  act,  or  in  other  words,  the  subjecting  of  m%n 
to  punishment  for  things  which  when  they  were  done  were  breaches  of  no 
law,  and  the  practice  of  arbitrary  imprisonments,  have  been  in  all  ages  the 
favorite  and  most  formidable  instruments  of  tyranny."  Chief  Justice 
Marshall's  definition  of  an  ex  post  facto  law,  which  has  frequently  been 
favorably  commented  on,  is,  any  law  "which  renders  an  act  punishable  in  a 
manner  in  which  it  was  not  punishable  when  it  was  committed."  Fletcher 
V.  Peek,  6  Cr.  138,  8  L.  Ed.  178.  "An  ex  post  facto  law,"  says  Justice 
Washington,  "is  one  which,  in  its  operation,  makes  that  criminal  which  was 
not  so  at  the  time  the  action  was  performed ;  or  which  increases  the  punish- 
ment, or,  in  short,  which,  in  relation  to  the  offense  or  its  consequences, 
alters  the  situation  of  a  party  to  his  disadvantage."  United  States  v.  Hall, 
2  Wash.  C.  C.  366,  Fed.  Cas.  15,286.  Sir  Thomas  Tomlin,  in  his  law  dic- 
tionary, thus  defines  the  term:  "Ex  post  facto  is  a  term  used  in  the  law, 
siiniifying  something  done  after,  or  arising  from,  or  to  affect  another  thing 
that  was  committed  before."  And  again,  "An  ex  post  facto  law  is  one 
which  operates  upon  a  subject  not  liable  to  it  at  the'  time  the  law  was 
made."  See  further  definitions  collected  in  Moore  v.  State,  43  N.  J.  L.  214, 
215,  225,  231,  39  Am.  Rep.  568,  569,  570;  Kring  v.  Missouri,  107  U.  S. 
227,  232,  238,  27  L.  Ed.  508,  510,  512,  2  Sup.  Ct.  449,  452,  457;  Anderson  v. 
Baker,  23  Md.  566,  581,  605. 

The  late  citations  of  the  ]|^rincipal  case  approve  and  apply  the  syllabus 
proposition  as 'follows:  State  v.  Malloy,  95  S.  C.  446,  Ann.  Oas.  19150,  1053, 
78  S.  E.  997,  affirmed  in  Malloy  v.  South  Carolina,  237  U.  S.  183,  59  L.  Ed. 
907,  35  Sup.  Ct.  507,  upholding  State  law  substituting  electrocution  for 
hanging  as  to  crimes  previously  committed;  United  States  v.  Spohrer,  175 
Fed.  446,  United  States  v.  Mansour,  170  Fed.  675,  and  Johannessen  v. 
United  States,  225  U.  S.  242,  56  L.  Ed.  1072,  32  Sup.  Ct.  613,  all  upholding 
Federal  statute  authorizing  impeachment  of  naturalization  certificates; 
Kentucky  Union  Co.  v.  Kentucky,  219  U.  S.  153,  66  L.  Ed.  154,  31  Sup.  Ct. 
171,  upholding  statute  forfeiting  land  titles  for  failure  to  list  and  pay 
taxes;  Rooney  v.  North  Dakota,  196  U.  S.  325,  49  L.  Ed.  497,  25  Sup.  Ct. 
264,  North  Dakota  act  of  1903,  changing  place  of  confinement  to  peniten- 
tiary before  execution  of  death  penalty,  is  not  ex  post  facto  as  applied  to 
conviction  before  its  passage;  Orr  v.  Gilman,  183  U.  S.  286,  46  L.  Ed.  201, 
22  Sup.  Ct.  216,  upholding  section  5  of  New  York  tax  law  of  April  16,  1897 ; 
Mallett  V.  North  Carolina,  181  U.  S.  593,  46  L.  Ed.  1018,  21  Suiy  Ct.  732, 


/  ^/ 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  4S 

appellate  laws  held  not  ex  post  facto ;  De  Pass  v.  Bidwell,  124  Fed.  623,  up- 
holding Foraker  act  imposing  duties  on  importation  from  Porto  Ricfe; 
Dodge  v.  Mission  Township,  107  Fed.  828,  54  L.  R.  A.  24fi,  denying  validity 

'  of  township  bonds  for  promotion  of  sugar  factories;  Diamond  State  Iron 
Co.  V.  Husbands,  8  Del.  Ch.  226,  68  Atl.  246,  upholding  law  relieving  corpo- 
ration from  consequences  of  failure  to  record  its  charter  in  time ;  Frisby  v. 
United  States,  38  App.  D.  C.  24,  25,  29,  37  L.  R.  A.  (N.  S.)  96,  defendant 
could  not  be  punished  for  forging  of  instrument  attached  to  answer  in 
equity  where  law,  subsequently  repealed,  provided  that  pleading  could  be 
used  only  as  evidence  of  perjury ;  Goode  v.  State,  50  Fla.  47,  39  South.  462, 
statute  changing  rules  as  to  sufficiency!  of  evidence  in  prosecutions  for  vio- 
lations of  liquor  laws  ex  post  facto  as  to  offense  committed  phor  to  law; 
Pittsburgh  etc.  R.  Co.  v.  Lightheiser,  168  Ind.  446,  78  N.  E.  1036,  prohibi- 
tion of  ex  post  facto  laws  does  not  apply  to  Employers'  Liability  Act ;  Ware 
v.  Sanders,  146  Iowa,  247,  124  N.  W.  1086,  construing  statute  providing  for 
indeterminate  sentences  as  inapplicable  to  offenses  committed  prior  to  its 

-  passage;  Shepherd  v.  Grimmett,  3  Idaho,  409,  31  Pac.  795,  upholding  elec- 
tor's test  oath ;  State  v.  Tyree,  70  Kan.  205,  78.  Pac.  525,  where  one  con- 
victed prior  to  indeterminate  sentence  law  of  1903,  but  sentenced  under  the 
law,  such  law  ex  post  facto  as  to  him;  Cassard  v.  Tracy,  Cassard  v.  Zacharie, 
52  La.  Ann.  845,  27  South.  372,  construing  constitutional  provision  giving 
appellate  court  jurisdiction  over  questions  of  fact;  Cowling  v.  Zenith  Iron 
Co.,  50  La.  Ann.  1249,  69  Am.  St  Rep.  473,  24  South.  241,  construing  con- 
stitutional provision  as  to  trial  without  jury;  State  v.  Vannah,  112  Me.  253, 
91  Atl.  987,  right  to  have  jury  selected  from  another  county  or  district  is 
not  within  prohibition  of  ex  post  facto  laws ;  State  y.  Vannah,  112  Me.  252, 
91  Atl.  986,  repeal  of  act  requiring  indictments  for  murder  to  be  certified 
to  Supreme  Court  is  valid  as  to  murder  previously  committed;  Murphy  v. 
Commonwealth,  172  Mass.  269,  70  Am.  St.  Rep.  271,  48  L.  R.  A.  164,  52  N.  E. 
507,  upholding  Stats.  1895,  p.  504,  relative  to  fixing  punishments  by  the 
court ;  McGuire  v.  State,  76  Miss.  513,  514,  26  South.  497,  construing  act  of 
April  5,  1872,  giving  jury  in  murder  prosecutions  right  to  fix  punishment; 
State  V.  Mallinckrodt  Chemical  Works,  249  Mo.  730,  156  S.  W.  975,  up- 
holding statute  requiring  corporation  to  file  anti-trust  affidtCvit;  Adams  v. 
County  Commrs.  of  Norfolk,  166  Mo.  303,  65  S.  W.  768,  construing  Constitu- 
tion, article  II,  section  12,  authorizing  prosecution  by  information;  State 
V.  Hoon,  78  Neb.  621,  111  N.  W.  463,  to  support  conviction  of  wife  deser- 
tion, both  "abandonment"  and  "failure  to  provide"  must  have  occurred 
prior  to  passage  of  statute ;  Howell  v.  Hurley,  170  N.  C.  405,  87  S.  E.  109, 
upholding  law  admitting  in  evidence  abstract  of  public  land  grants;  State 
V.  Rooney,  12  N.  D.  150,  95  N.  W.  515,  act  of  1903,  substituting  penitentiary 
for  county  jail  as  place  of  confinement  pending  execution,  and  directing 
executions  at  penitentiary,  is  not  ex  post  facto  as  to  one  convicted  before 
its  passage;  Ex  parte  Larkin,  1  Okl.  58,  11  L.  R.  A.  418,  25  Pac.  747,  Act 
1st  Assem.  Okl.  T.,  §  1,  continuing  in  force  Neb.  Cr.  Code,  is  not  ex  post 
facto  as  to  offense  already  committed;  Commonwealth  v.  Kalck,  239  Pa. 
538,  87  Atl.  62,  indeterminate  sentence  law  held  not  ex  post  facto  because 
mitigatin^^  penalty. 


I 

49  CALDER  ▼.  BULL.  3  DaU.  386-401 

Xhtentloii  tbat  Uw  retroact  miuit  be  plain. 

The  rule  is  "clearly  maintained  by  writers  of  the  highest  authority  and 
conclusively  settled  in  a  variety  of  decided  cases."  Lewis  v.  Bf  ackenridge, 
1  Blackf .  222,  12  Am.  Dec.  280 ;  Burke  v.  Barron,  8  Iowa,  135 ;  Wilder  v. 
Lumpkin,  4  Ga.  214,  215,  218;  Boyce  v.  Holmes,  2  Ala.  66;  Couch  v.  McKce, 
6  Ark.  493 ;  Larkin  v.  Saffarans,  15  Fed.  150 ;  Rich  v.  Flanders,  39  N.  H. 
313,  381,  349,  376,  380,  381,  387;  Den  ex  dem.  Berdan  v.  Van  Riper,  16 
N.  J.  L.  10,  14;  Commonwealth  v.  Homer,  153  Mass.  344,  26  N.  E.  872;  Ex 
parte  Quarrier,  4  W.  Va.  212,  223 ;  Dash  v.  Van  Kleeck,  7  Johns.  489,  491, 
499,  507,  5  Am.  Dec.  298,  299,  306,  812. 

Applies  to  criminal  laws  only. 

Oyer  the  rule  first  authoritatively  announced  in  the  leading  case  to  the 
effect  that  the  phrase  ex  post  facto  in  the  Constitution  is  to  be  understood 
in  its  technical  sense,  and  as  referring  solely  to  criminal  laws,  there  has 
been  no  controversy.  The  high  authority  of  the  tribunal  announcing  it,  the 
soundness  of  the  reasoning  by  which  the  conclusion  was  reached,  and  the 
evident  intention  of  the  framers  of  the  Constitution  so  to  limit  the  appli- 
cation of  the  term  have  been  deemed  by  subsequent  cases  conclusive  upon 
the  point.  As  early  as  Forsyth  v.  Marbury  (1830),  Charlt.  (Ga.)  329,  the 
court,  speaking  per  Law,  J.,  said  of  the  rule  of  the  leading  case,  that  it 
"stands  unchanged  and  has  never  been  renounced  by  the  court,  and  it  will, 
I  presume,  control  the  meaning  of  these  words  so  long  as  it  does  remain." 
The  Supreme  Court  of  N<HTth  Carolina  has  referred  to  it  as  "universally 
accepted  and  approved."  State  v.  Bell,  Phill.  (N.  C.)  76,  at  p.  81.  In  the 
following  ca&es  also  this  distinction  drawn  by  the  leading  case  is  referred 
to  and  approved:  In  re  Sawyer,  124  U.  S.  219,  31  L.  Ed.  408,  8  Sup.  Ct.  492; 
Locke  V.  New  Orleans,  4  Wall.  174,  18  L.  Ed.  335 ;  Albee  v.  May,  2  Paine, 
74,  79,  Fed.  Cas.  134;  United  States  v.  Gibert,  2  Sumn.  101,  Fed.  Cas. 
15,204;  Holman  v.  Bank  of  Norfolk,  12  Ala.  417;  Burt  v.  State,  39  Ala.  650; 
Elliott  V.  Mayfield,  4  Ala.  423;  Dale  v.  Governor,  3  Stew.  (Ala.)  418,  420, 
421 ;  Aldridge  ^v.  Tuscumbia  etc.  R.  R.  Co.,  2  Stew.  &  P.  199,  207,  23  Am. 
]>e&  312 ;  Bridgeport  v.  Hubbell,  5  Conn.  240 ;  Bridgeport  v.  Housatonic  R. 
E.  Co.,  16  Conn.  496,  497;  Randel  v.  Shoemaker,  1  Harr.  (Del.)  577;  Aycjock 
v.  Martin,  37  Ga.  124,  177,  185 ;  Boston  v.  Cummins,  16  Ga.  107,  60  Am. 
Dec.  720;  Coles  v.  Madison  Co.,  Breese,  156,  12  Am.  Dec.  163;  Andrews  v. 
Russell,  7  Blackf.  476;  State  v.  Squires,  26  Iowa,  346;  Henderson  etc.  R.  R. 
Co.  V.  Dick^rson,  17  B.  Mon.  177,  66  Am.  Dec  149,  150 ;  Davis  v.  Ballard, 
1  J.  J.  Marsh.  577,  579;  Le  Breton  v.  Morgan,  4  M^irt.  (La.)  (N.  S.)  142; 
Baugher  v.  Nelson,  9  Gill,  299,  305,  307,  52  Am.  Dec.  698,  699;  State  v. 
Hufty,  11  La.  Ann.  316,  318;  Wilson  v.  Hardesty,  1  Md.  Ch.  68;  Scott  v. 
Smart,  1  Mich.  302,  307;  Drehman  v.  Stifel,  41  Mo.  204,  97  Am.  Dec.  273; 
State  V.  Mayor  etc.,  37  N.  J.  L.  43;  Suydam  v.  Receivers  etc.,  3  N.  J.  Eq. 
117;  Grim  v.  Weissenberg  School  Dist.,  57  Pa.  St.  435,  98  Am.  Dec.  239; 
Lane  v.  Nelson,  79  Pa.  St.  410 ;  Hess  v.  Werts,  4  Serg.  &  R.  364 ;  Eakin  v. 
Raub,  12  Serg.  &  R.  330,  358 ;  Mercer  v.  Watson,  1  Watts,  366 ;  Stoddart  v. 
Smith,  5  Binn.  364,  364;  Commonwealth  v.  Lewis,  6  Binn.  271;  Bjmie  v. 
Stewart,  3  Des.  Eq.  477;  De  Cordova  v.  Galveston,  4  Ter.  473,  474,  478; 


\ 


3t  Dalf.  386-401  NOTES  ON  U.  S.  REPORTS.  60 

Bender  v.  Crawford,  33  Tex.  761,  752,.  7  Am.  Rep.  272,  273;  Danville  v. 
Pace,  25  Gratt.  1,  10,  18  Am.  Rep.  669 ;  Caperton  v.  Martin,  4  W.  Va.  150, 
6  Am.  Rep.  279 ;  State  v.  Staten,  6  Coldw.  233,  278 ;  Carpenter  v.  Pennsyl- 
vania, 17  How.  463,  15  L.  Ed.  129;  Anderson  v.  Baker,  23  Md.  566,  581, 
605 ;  Burch  v.  Newbury,  10  N.  Y.  374,  391,  394 ;  Lynn  v.  State,  84  Md.  67, 
78,  35  Atl.  22 ;  People  v.  Hawker,  152  N.  Y.  234,  240,  46  N.  E.  608 ;  Weister 
V.  Hade,  52  Pa.  St.  480 ;  Baltimore  R.  R.  v.  Nesbit,  10  How.  402,  13^.  Ed. 
472. 

The  prohibition  to  be  liberally  construed  in  favor  of  personal  liberty. 

The  prohibition  is  "an  additional  bulwark  in  favor  of  the  personal  secur- 
ity of  the  subject."  Calder  v.  Bull,  3  Ball.  390,  1  L.  Ed.  650.  And  the 
authorities  show  that  the  tendency  has  been  to  a  liberal,  rather  than  a  nar- 
row, construction  in  favor  of  individual  rights.  Compare  Cummings  v. 
Missouri,  4  Wall.  277,  18  L.  Ed.  356,  Ex  parte  Garland,  4  Wall.  333,  18 
L.  Ed.  366,  and  Kring  v.  Missouri,  107  U.  S.  221,  27  L.  Ed.  506,  with  State 
V.  Moore,  42  N.  J.  L.  208.  "The  Constitution  deals  with  substance  not 
shadows,"  said  Justice  Field  in  Cummings  v.  Missouri.  *1ts  inhibition  was 
leveled  at  the  thing  not  the  name.  It  intended  that  the  rights  of  the  citizen 
should  be  secure  against  deprivation  for  past  conduct  by  legislative  enact- 
ment, under  any  form,  however  disguised.  If  the  inhibition  can  be  evaded 
by  the  form  of  the  enactment,  its  insertion  in  the  fundamental  law  was  a 
vain  and  futile  proceeding." 

Statutes  pnrportlxig  to  be  civil  in  their  nature  may  be  within  its  meaning. 

Accordingly  while  the  distinction  is  in  general  between  civil  and  crimi- 
nal laws  a  statute  apparently  civil  in  its  nature,  which  yet  retroacts  on  past 
offenses  and  seeks  to  punish  for  them  by  indirection,  is  equally  within  the 
prohibition.  Cummings  v.  Missouri,  4  Wall.  277  (1),  18  L.  Ed.  356;  Ex 
parte  Garland,  4  Wall.  390,  18  L.  Ed.  874.  This  proposition  is  illustrated 
by  several  cases  involving  the  validity  of  certain  test  oath  a^\3  passed 
at  the  close  of  the  Civil  War  in  several  States  and  by  Congress. 

Statute  must  retroact  criminally. 

Moreover  a  statute  partaking  of  the  nature  both  of  a  criminal  and  civil 
law,  but  which  retroacts  only  in  its  civil  aspects,  is  not  prohibited.  Accord- 
ingly a  retrospective  law  taxing  the  purchases  of  merchants  for  the  previ- 
ous year,  and  imposing  a  penalty  for  failure  to  furnish  the  information 
necessary  to  assess  the  tax,  is  wholly  prospective  in  its  criminal  operation ; 
State  V.  Bell,  Phill.  (N.  C.)  81.  And  a  statute  prohibiting  the  sale  of 
liquor,  though  applicable  to  liquor  previously  manufactured,  is  not  ex  post 
facto,  because  retroacting  only  in  the  "civil  consequence  of  lessening  the 
value  of  certain  property  owned  at  the  time  of  its  passage."  State  v.  Paul, 
5  R.  I.  190. 

Justice  Chase's  definition. 

The  definition  propounded  by  Justice  Chase  of  laws  which  are  within  the 
prohibition  '^has  been  accepted  generally,  and,  we  believe,  everywhere  in 
the  United  States  without  exception.''    £x  parte  Bethurum,  66  Mo.  549. 


51  CALDER  V.  BULL.  3  Dall.  386-401 

Justice  Miller  has  said  of  it. ' '  This  exposition  of  the  nature  of  e:{\post  facto 
laws  has  never  heen  denied,  nor  has  any  court  or  any  commentator  on  the 
Constitution  added  to  the  classes  of  laws  here  set  forth  as  coming  within 
that  elause  of  the  organic  law,''  dissenting  opinion  in  Ex  parte  Garland, 
4  Wall.  391,  18  L.  Ed.  374.  So  Byrd,  J.,  in  Hart  v.  State,  40  Ala.  34,  37, 
38,  88  Am.  Dec.  755,  756,  declared  it  "too  long  acquiesced  in  and  recognized 
by  repeated  and  uniform  adjudication  to  be  now  disturbed;  and  .  .  . 
the  only  question  is  as  to  its  application  to  cases  as  they  may  arise."  The 
definition  is  also  adopted  in  the  following  cases:  Cummings  v.  Missouri,  4 
Wall.  277,  18  L.  Ed.  356;  In  re  Angelo  de  Giacomo,  12  Blatchf.  401,  Fed. 
Cas.  3747;  State  v.  Hoyt,  47  Conn.  532;  Reynolds  v.  State,  1  Ga.  228; 
Strong  V.  State,  1  Blackf.  197;  Walston  v.  Commonwealth,  16  B.  Mon.  37, 
39;  State  v  .Johnson,  12  Minn.  484,  485,  93  Am.  Dec.  247,  248;  State  v. 
Garesche,  36  Mo.  259;  Rich  v.  Flanders,  39  N.  H.  304,  313,  321,  349,  376, 
380,  381,  387;  Woart  v.  Winnick,  3  N.  H.  473,  475,  476,  14  Am.  Dec.  385, 
387;  State  v.  Moore,  42  N.  J.  L.  228;  Dickinson  v.  Dickinson,  13  Murph. 
(N.  C.)  330,  9  Am.  Dec.  609;  Green  v.  Shumway,  39  N.  Y.  424,  432;  Hartung 
V.  People,  22  N.  Y.  104 ;  Holt  v.  State,  2  Tex.  364 ;  Ex  parte  Hunter,  2  W. 
Va.  159, 172;  United  States  v.  Hughes,  8  Ben.  30,  32,  Fed.  Cas.  15,416;  State 
,  V.  Thompson,  141  Mo.  417, 42  S.  W.  951.  Yet  it  has  not  proved  broad  enough 
to  cover  all  the  adjudicated  cases:  Moore  v.  State,  43  N.  J.  L.  203,  214, 
215,  217,  225,  231,  39  Am.  Rep.  568,  569,  570 ;  Reynolds  v.  State,  1  Ga.  228 ; 
Kring  V.  Missouri,  107  U.  S.  227,  232,  238,  27  L.  Ed.  508,  510,  512,  2  Sup. 
Ct.  449,  452,  457.  The  stress  of  the  facts  in  Kring  v.  Missouri,  107  U.  S. 
221,  27  L.  Ed.  506,  in  the  opinion  of  a  majority  of  the  Supreme  Court  of 
the  United  States,  necessitated  a  slightly  different  statement  of  the  rule 
for  determining  the  validity  or  invalidity  of  a  statute  retroacting  upon 
past  conduct,  which  was  embodied  in  the  syllabus  of  the  case,  as  follows: 
**  Within' the  meaning  of  the  Constitution,  any  law  is  ex  post  facto  which 
is  enacted  after  tl\e  offense  was  committed,  and  which,  in  relation  to  it^or 
its  consequences,  alters  the  situation  of  the  accused  to  his  disadvantag^e. " 

It  is  in  order  to  take  up  group  (1),  which  comprises: 

(1)  Every  law  that  makes  an  action  done  before  the  passing  of  the  law, 
and  which  was  innocent  when  done,  criminal,  and  punishes  snch  action. 

It  had  previously  been  observed  with  reference  to  certain  English  ex 
post  facto  laws  that  "Sometimes  they  respected  the  crime,  by  declaring 
acts  to  be  treason  which  were  not  treason  when  coriimitted"  (p.  389),  and 
the  two  ideas  are  manifestly  to  be  construed  together.  The  proposition 
thus  set  forth  seems  clear  and  devoid  of  any  perplexities.  A  Mississippi 
case  furnishes  an  illustration  of  its  application.  By  a  law  in  force  in  that 
State  in  1887,  the  carrying  of  concealed  weapons  was  prohibited  except 
where  the  party  had  "good  and  sufficient  reasons  to  apprehend  an  attack," 
the  penalty  being  fixed  at  a  maximum  of  one  hundred  dollars,  or  two 
months'  imprisonment.  An  amendment  in  1888  struck  out  the  exceptioi\ 
and  inserted  a  minimum  penalty  of  twenty-five  dollars,  or  one  month.  This 
was  held  ex  post  facto  as  applied  to  a  previous  offense,  because,  in  certain 
cases,  making  criminal  an  act  innocent  when  done,  and  in  all,  inflicting  a 


3  DaU.  386-401  NOTES  ON  U.  S.  REPORTS.  62 

possibly  greater  penalty.  Lindzey  y.  State,  66  Miss.  543,  7  Am.  St.  Rep. 
675,  6  South.  99.  Again,  it  is  relied  on  in  one  of  the  test  oath  cases 
already  considered.  Clergymen  were  by  law,  in  Missouri,  required  to  take 
oath  that  they  had  never  borne  arms  against  the  United  States,  and  that 
they  had  never  left  the  State  to  avoid  enrollment  or  draft  in  the  army; 
and  those  who  could  not  take  the  oath  were  forbidden  the  exercise  of  their 
calling.  ^  The  Supreme  Court  held,  per  Field,  J.  (Chase,  C.  J.,  Swayne, 
Miller  and  Davis,  J  J.,  dissenting),  that  this  latter  requirement  of  the  oath 
had  the  effect  to  make  criminal  an  act  inno(^nt  when  done,  since  leaving 
the  State  to  avoid  draft  in  the  military  service  had  not  formerly  been  a 
crime.  The  decision,  however,  is  based  mainly  on  the  point  that  the  stat- 
ute had  the  effect  to  inflict  additional  punishment,  and  was,  therefore, 
within  the  third  portion  of  the  definition  of  the  leading  case. 

The  legislature  may  not  revive  criminal  prosecutions  barred  by  statute  of 
limitations  or  pardon. 

Not  only  are  laws  prohibited  which  punish  an  act  as  criminal  which  was 
innocent  when  done,  but  also  laws  w(|ich  inflict  punishment  for  an  act 
as  to  which  there  was  no  criminal  liability  to  pjtinishment  at  the  time  of 
its  passage.  As,  to  extend  the  time  allowed  for  prosecuting  a  criminal 
offense  by  a  retrospective  statute  seeking  to  revive  the  right  to  prosecute 
a  former  offense,  which  had  lapsed  under  the  old  law.  Moore  v.  State,  43 
N.  J.  L.  203,  39  Am.  Rep.  558,  reversing  State  v.  Moore,  42  N.  J.  L.  208; 
State  V.  Sneed,  25  Tex.  Supp.  66,  where  it  was  held  that  the  provisions  of 
the  new  code  extending  the  time  in  which  a  criminal  offense  might  be  prose- 
cuted did  not  operate  retrospectively  to  revive  any  right  of  action,  because 
if  so  applied  it  would  be  ex  post  facto;  State  v.  Keith,  63  N.  C.  140,  where 
the  question  was  whether  the  State  constitutional  convention  could  revive 
the  right  to  prosecute  for  a  felony  which  had  been  pardoned  by  a  con- 
gressional act  of  amnesty.  In  declaring  the  provision  void  because  ex  post 
facto,  the  court  said:  "The  ordinance  in  question  was  substantially  an 
ex  post  facto  law ;  it  made  criminal  what,  before  thp  ratification  of  the  ordi- 
nance, was  not  so;  and  it  took  away  from  the  prisoner  his  vested  right  to 
immunity."  There  is  also  some  ground  for  saying  that  jurisdiction  can- 
not subsequently  be  conferred  to  try  a  previous  crime  which  was  not  in- 
dictable in  any  court  when  committed;  United  States  v.  Starr,  Hempst.  471, 
Fed.  Cas.  16,379;  though  the  decision  was  put  upon  the  ground  that  the 
statute  in  question  was  not  intended  to  retroact  at  all.  See,  also,  Falconer 
V.  Campbell,  2  McLean  C.  C.  195,  Fed.  Cas.  4620. 

But  if  the  immunity  from  prosecution  arises,  not  by  operation  of  law 
in  the  jurisdiction  where  the  crime  was  committed,  but  by  intervention 
of  the  laws  and  protection  of  another  jurisdiction,  a  law  depriving  the 
offender  of  the  protection  thus  conferred  is  not  within  the  rule  of  Moore 
V.  State.  Thus  an  extradition  treaty  whereby  a  person  is  surrendered  by 
the  United  States  for  a  murder  committed  in  a  foreign  country  previous  to 
the  ratification  of  such  treaty  is  not  ex  post  facto  in  a  sense  to  protect 
such  offender  from  the  operation  of  the  treaty ;  assuming  that  a  treaty  is 
a  law  ahd  subject  to  the  constitutional  limitations  imposed  upon  legislative 
acts.    In  re  Angelo  de  Giacoma,  12  Blatchf .  401,  Fed.  Cas.  3747. 


63  CALDEB  v.  BULL.  3  Ball.  386-401 

(2)  Srery  law  tliat  aggravates  a  crime,  or  makes  It  greater  tlian  it  was 
whflD  committed. 

None  of  the  cases  oitiz^  Calder  ▼.  Bull  come  under  this  head  ezcltisively. 
Apparently  the  reference  is  to  such  statutes  as  make  a  certain  fact  a 
greater  offense  in  the  eyes  of  the  law  than  previously;  as,  for  instance,  a 
statute  declaring  that  a  breaking  in  in  the  daytime  be  burglary  not  in  the 
second  but  in  the  first  degree.  In  general,  the  repugnance  of  such  a  law, 
if  retrospective,  is  apparent  on  other  grounds ;  since  practically,  and  almost 
necessarily,  an  aggravation  of  the  punishment  is  the  invariable  concomi- 
tant of  an  aggravation  of  the  crime,  thus  bringing  the  statute  under  the 
third  prohibited  group  of  laws.  But  if  the  class  is  intended  to  include 
laws  not  within  the  third  group — a  law,  for  instance,  aggravating  a  crime 
without  changing  its  form  of  trial,  or  aggravating  its  punishment  in  any 
way,  affecting  the  accused  only  in  giving  his  offense  a  more  opprobrious 
title,  it  would  not  seem  to  be  altogether  sound,  especially  in  view  of  the 
rule  laid  down  subsequently  in  the  Kring,case.  In  many  of  the  cases 
groups  (2)  and  (3)  are  classed  together.    State  v.  Moore,  42  N.  J^  L.  228. 

(3)  Every  law  that  changes  the  punishment,  and  inflicts  a  greater  punish- 
ment, than  the  law  annexed  to  the  crime,  when  committed — ^punishment,  what  is. 

What  constitutes  a  punishment  within  the  interdict  of  the  constitutional 
provision  is  a  question  concerning  which  there  has  been  upon  occasion  con- 
siderable difference  of  opinion.  In  general  it  has  been  defined  as  the 
penalty  imposed  for  a  transgression  of  the  law.  Dissenting  opinion  in 
Ex  parte  Garland,  4  Wall.  393,  18  L.  Ed.  874.  But  mere  matters  of  prison 
discipline  or  penal  administration,  although  they  may  impose  more  onerous 
conditions  upon  those  under  sentence,  are  not  within  the  meaning  of  the 
term.  Hartimg  v.  People,  22  N.  Y.  95,  105.  Denio,  J.,  who  delivered  the 
opinion  in  that  cas^  says :  "Any  change  which  would  be  referable  to  prison 
discipline  or  penal  administration,  as  its  primary  object,  might  also  be 
made  to  take  effect  upon  past  as  well  as  future  offenses,  as  changes  in  the 
manner  or  kind  of  employment  of  convicts  sentenced  to  hard  labor,  the 
system  of  supervision,  the  means  of  restraint,  or  the  like.  Changes  of  this 
sort  might  operate  to  increase  or  mitigate  the  severity  of  the  punishment 
of  the  convict,  but  would  not  raise  any  question  under  the  constitutional 
provision  we  are  considering."  And  see  Lindzey  v.  State,  65  Miss.  545, 
7  Am.  St.  Rep.  676,"  6  South.  100.  In  In  re  Miller,  UO  Mich.  677,  64 
Am.  St.  Bep.  877,  68  N.  W.  990,  a  statute  denying  to  convicts  serving  a 
second  term,  any  reduction  from  their  sentence  for  good  behavior,  is  held 
applicable  to  criminals  whose  first  offense  antedated  the  act. 

Certain  civil  consequences  may  be  punishment. 

It  would  not  seem  to  be  necessary  that  the  law  contemplate  a  criminal 
penalty  at  all  in  the  strict  sense  of  that  term.  Certain  other  civil  conse- 
quences attached  to  a  past  offense,  in  their  nature  disadvantageous  to  the 
offender,  are  equally  prohibited.  Thus  a  law  which  authorized  the  grant- 
ing of  a  divorce  for  adultery,  previously  only  punishable  by  fine,  has  been 
held  ex  post  facto  and  void  when  applied  to  pre-existing  offenses.  Dickin- 
son V.  Dickinson,  3  Murph.  (N.  C.)  330,  9  Am.  Dec.  609,  though  the  oppo- 


3  Dall.  386-401  NOTES  ON  U. «.  REPORTS.  64 

site  conclnsion  has  been  reached  elsewhere.  Elliott  v.  Elliott,  38  Md.  362 , 
Jones  V.  Jones,  2  Overt.  2,  and  see  Carson  v.  Carson,  40  Miss.  349.  A 
statute  requiring  defendants,  in  certain  suits  prosecuted  by  the  Federal 
government,  to  produce  certain  books  and  papers  upon  demand  of  the 
government's  attorney,  on  pain  df  having  the  facts  expected  to  be  proved 
thereupon  taken  as  confessed  in  case  of  refusal,  inflicts  a  punishment, 
although  the  proceeding  is  civil  in  its  nature,  and  is  inapplicable  ex  post 
facto.  United  States  v.  Hughes,  8  Ben.  30,  32,  Fed.  Cas.  15,416.  Again, 
the  deprivation  of  the  right  to  practice  law  or  conduct  religious  services 
is  a  punishment  just  as  much  prohibited,  when  imposed  for  past  offenses, 
as  flue  or  imprisonment.  Cummings  v.  Missouri,  4  Wall.  277,  18  L.  Ed. 
366;  Ex  parte  Garland,  4  Wall.  333,  18  L.  Ed.  366;  Murphy  &  Glover  Test 
Oath  Cases,  41  Mo.  370 ;  State  v.  Bermondy,  36  Mo.  279 ;  State  v.  Mc Adoo, 
36  Mo.  452 ;  State  v.  Adams,  44  Mo.  670 ;  State  v.  Neal,  42  Mo.  119 ;  Cohen 
V.  Wright,  22  Cal.  319 ;  Ex  parte  Law,  35  Ga.  297.  And  it  is  not  essential 
that  such  an  act  define  any  crime  or  purport  to  inflict  any  penalty  at  all. 
It  may,  upon  its  face,  be  no  more  than  a  mere  civil  regulation,  and  it  is 
only  essential  that  it  do  in  fact  operate  to  inflict  punishment  for  past 
conduct.  While  the  Supreme  Court  has  never  modified  or  departed  from 
the  doctrine  of  these  "Test  Oath"  cases  (Pierce  v.  Carskadon,  16  Wall.  234, 
21  L.  Ed.  276),  the  acquiescence  of  some  of  the  State  tribunals  has  been 
attended  by  many  adverse  criticisms  concerning  it.  The  Supreme  Court 
of  Missouri  still  maintained  that  such  legislation  is  not  ex  post  facto ,  and 
that  to  be  such  it  should  punish  a  x>ast  act  as  criminal.  Murphy  &  Glover 
*Test  Oath  Cases,  41  Mo.  339,  at  p.  370.  And  similarly  the  leading  4ase 
has  elsewhere  been  relied  upon  as  at  variance  with  the  doctrine  of  the 
Cummings  and  Garland  Cases.  Ex  parte  Hunter,  2  W.  Va.  159,  172;  Ex 
parte  Quarrier,  4  W.  Va.  212,  223;  Peerce  v.  Carskadon,  4  W.  Va.  248, 
6  Am.  Bep.  292,  reversed  in  16  Wall.  234,  21  L.  Ed.  276.  "I  feel  con- 
strained to  acknowledge,"  said  Brown,  J.,  in  delivering  the  opinion  of  the 
West  Virginia  Supreme  Court,  in  one  ca&e,  "that  in  my  humble  opinion 
the  weight  of  the  argument  is  decidedly  in  favor  of  the  dissenting  judges." 
Ex  parte  Quarrier,  4  W.  Va.  212,  223 ;  and.  Mason,  J.,  dissenting  in  a  New 
York  case,  criticised  them  as  giving  "an  interpretation  to  this  clause  of 
the  Constitution  never  contemplated  by  the  framers  and  wholly  at  variance 
with  the  early  expounder  of  that  instrument."  Gr^en  v.  Shumway,  39 
N.  Y.  418,  434.    See,  also.  State  v.  Cummings,  36  Mo.  273. 

Deprivation  of  right  to  vote,  whether  a  punishment. 

A  statute  which  in  effect,  though  not  expressly,  prohibits  certain  persons 
from  engaging  in  professional  pursuits,  undoubtedly  inflicts  a  punishment, 
whether  or  no  it  be  a  punishment  within  the  meaning  of  the  rule  of  the 
principal  case.  There  would  seem  to  be  less  ground,  however,  for  hold- 
ing a  statute  which  similarly  effects  a  deprivation  of  the  right  to  vote  for 
delegates  to  a  constitutional  convention,  to  be  a  punishment  in  any  proper 
sense  of  the  term.  Yet  such  was  one  ground  of  the  decision  of  the  court  in 
Green  v.  Shumway,  39  N.  Y.  424,  432,  following  Cummings  v.  Missouri, 
and  Ex  parte  Garland;  only  two  of  the  five  concurring  judges,  however, 
based  their  assent  upon  this  ground,  and  the  proposition  seems  unsound 


I 


55  CALDER  v.  BULL.  3  Dall.  386-401 

and  has  been  denied  elsewhere.  Anderson  v.  Baker,  23  Md.  605 ;  Washing- 
ton V.  State,  75  Ala.  582 ;  Blair  v.  Ridgely,  41  Mo.  171,  97  Am.  Dec.  252 ; 
Shepherd  v.  Grimmett,  2  Idaho,  1128,  31  Pac.  795. 

In  the  proper  exercise  of  Its  police  power  the  State  may  incidentally  punish 
for  past  acts  by  deprivation  of  certain  civil  rights. 

An  important  limitation  has  been  engrafted  upon  the  prohibition  against' 
ez  post  facto  laws  by  a  case  arising  under  a  New  York  statute.  A  law 
of  that  State,  as  amended  in  1895,  prohibited  any  person  from  practicing 
medicine  as  a  physician  who  had  ever  been  convicted  of  a  felony  by  any 
court.  One  H.  was  indicted  and  found  guilty  under  this  statute,  it  being 
shown  that  he  "had  in  1878  been  found  guilty  of  the  crime  of  abortion  and 
sentenced  to  imprisonment  in  the  State  penitentiary.  For  defendant  it 
was  insisted  that  the  statute  was  ex  post  facto  as  applied  to  him,  because 
inflicting  additional  punishment  for  past  acts;  and  upon  the  other  hand 
it  was  argued  that  the  statute  was  a  reasonable  police  regulation  which 
the  State  might  lawfully  establish  for  the  better  proteqtion  of  the  public 
health  and  morals.  A  judgment  sustaining  this  latter  contention,  by  a 
bare  majority,  in  tha  New  York  Court  of  Appeals,  was  affirmed  also  by  a 
divided  court,  upon  appeal  to  the  national  Supreme  Court.  People  v. 
Hawker,  152  N.  Y.  240,  46  N.  E.  608 ;  Hawker  v.  New  York,  170  U.  S.  201, 
42  L.  Ed.  1007, 18  Sup.  Ct.  578. 

Different  or  greater  punishment,  what  is. 

A  very  slight  change  in  the  punishment  is  sufficient  to  bring  a  statute 
under  the  ban  as  "changing  the  punishment  and  inflicting  a  greater  pun- 
ishment" than  that  previously  imposed.  This  is  true  unless  the  new  pen- 
alty be  clearly  a  mitigation  or  remission  of  the  former  punishment,  when 
the  rule  is  otherwise.  'It  is  enough  to  bring  the  law  within  the  condemna- 
tion of  the  Constitution,"  said  Denio,  J.,  "that  it  changes  the  punishment 
after  the  commission  of  the  offense,  by  substituting  for  the  prescribed 
penalty  a  different  one.  We  have  no  means  of  saying  whether  one  or  the 
other  would  be  the  most  severe  in  a  given  case.  That  would  depend  upon 
the  disx)osition  and  temperament  of  the  convict.  The  legislature  cannot 
thus  experiment  upon  the  criminal  law."  Hartung  v.  People,  22  N.  Y.  106. 
In  that  case  the  validity  of  a  law  was  involved  which  changed  the  pun- 
ishment for  murder  from  death  upon  the  order  of  the  trial  judge,  to  im- 
prisonment at  hard  labor  for  one  year,  and  then  death  upon  the  warrant 
of  the  Governor  of  the  State,  and  not  otherwise,  thus  putting  it  in  the 
power  of  the  executive  to  postpone  sentence  of  death  for  an  indefinite 
time.  This  was  held  inapplicable  to  a  pre-existing  case  on  the  above 
grounds,  although  the  court  admitted  that  very  probably  the  legislature 
intended  the  law  as  favorable  to  those  accused.  This  law  being  repealed, 
and  the  old  re-enacted,  it  was  held  upon  similar  reasoning  that  the  old 
law  could  tLot  be  applied  retroactively  because  not  clearly  in  mitigation 
of  the  statute  thereby  repealed.  Ratzky  v.  People,  29  N.  Y.  124 ;  see,  also, 
Wilson  V.  Ohio  etc.  R.  R.,  64  111.  542.  A  law,  changing  the  penalty  for 
murder  from  imprisonment  or  death,  to  death,  is  plainly  objectionable 
as  inflicting  a  greater  punishment.    Marion  v.  State,  16  Neb.  353,  20  N.  W. 


3  Ball.  386-401  NOTES  ON  U.  S.  REPORTS.  56 

291.  Nor  is  it  necessaiy  to  show  in  the  particular  case  that 'the  law  must 
necessarily  inflict  a  greater  punishment  than  would  otherwise  have  heen 
imposed.  It  is  enough  that  it  might  do  so.  Thus^  the  statute  making  the 
minimum  penalty  for  ^keeping  a  disorderly  house,  greater  than  under  the 
previous  law,  even  though  the  maximum  penalty  is  reduced,  cannot  be 
retrospectively  applied.  Beard  v.  State,  74  Md.  132,  21  Atl.  701;  Lindzey 
V.  State,  65  Miss.  545,  7  Am.  St.  Bop.  676,  5  South.  100. 

Additional  panlshment,  however  slight,  inhibited. 

Similarly  additional  punishment  imposed,  though  of  small  moment  as 
compared  to  the  original  penalty,  is  within  the  definition  of  "greater  pun- 
ishment." Thus  to  enact  that  one  guilty  of  treason  shall  be  deprived  of 
the  right  to  practice  law  is  void  if  retrospective.    Cumraings  v.  Missouri 

4  Wall.  277,  18  L.  Ed.  356;  Ex  parte  Garland,  4  Wall.  333,  18  L.  Ed.  366. 
With  reference  to  this  point  Justice  Miller,  in  his  dissenting  opinion,  said : 
"A  part  of  the  matter  of  which  the  applicant  is  required  to  purge  himself 
on  oath  may  amount  to  treason,  but  surely  there  could  be  no  intention 
or  desire  to  inflict  this  small  additional  punishment  for  a  crime  whose 
penalty  already  was  death  and  confiscation  of  property"  (p.  394),  18 
L.  Ed.  375.  The  majority  of  the  court,  however,  thought  otherwise.  The 
proposition  is  further  illustrated  by  a  Colorado  statute,  respecting  con- 
victed murderers.  The  statute  directed  the  warden  of  the  penitentiary  to 
keep  such  prisoners  in  solitary  confinement,  admitting  only  physicians, 
attendants,  counsel  and  a  religious  adviser  to  see  them,  and  empowered  the 
warden^  instead  of  the  trial  judge,  to  fix  the  time  of  execution,  requiring 
him  not  to  divulge  it  to  the  prisoner.  In  general  these  features  were  ab- 
sent from  the  old  law  by  "which  such  offenders  were  imprisoned  in  the 
county  jails,  and  were  declared  sufficient  to  bring  the  statute  within  the 
prohibition  of  the  ex  post  facto  clause  of  the  Constitution,  if  applied  to 
prior  crime.  Medley,  Petitioner,  134  U.  S.  171,  83  L.  Ed.  840,  10  Sup.  Ct. 
384.  The  decision  was  largely  based  upon  the  fact  that  solitary  confine- 
ment was  a  very  palpable  addition  to  the  previous  penalty.  Justice  Miller 
said:  "Instead  of  confinement  in  the  ordinary  county  prison  of  the  place 
where  he  and  his  friends  reside;  where  they  may,  under  the  control  of  the 
sheriff,  see  him  and  visit  him;  where  the  sheriff  and  his  attendants  must 
see  him;  where  his  religious  adviser  and  his  legal  counsel  may  often  visit 
him  without  any  hindrance  of  law  on  the  subject,  the  convict  is  trans- 
ferred to  a  place  where  imprisonment  always  implies  disgrace,  and  which, 
as  this  court  has  judicially  decided  in  Ex  parte  Wilson,  114  U.  S.  417,  29 
li.  Ed.  89,  5  Sup.  Ct.  935 ,  Mackin  v.  United  States,  117  U.  S.  348,  29  L.  Ed. 
909,  6  Sup.  Ct.  777,  Parkinson  v.  United  States,  121  U.  S.  281,  30  L.  Ed. 
959,  7  Sup.  Ct.  896,  and  United  States  v.  De  Walt,  128  U.  S.  393,  is  itself 
an  infamous  punishment,  and  is  there  to  be  kept  in  solitary  confinement." 
Pages  168,  169,  33  L.  Ed.  839,  10  Sup.  Ct.  386,  387.  Justices  Bradley  and 
Brewer,  dissenting,  held  that  these  changes  were  merely  trifling.  The  case 
overruled  In  re  Tyson,  13  Colo.  484,  22  Pac.  810, 


\ 


67  CALDER  v.  BULL.  3  Dall.  386-401 

S0tro«peetiTe  laws  In  mitUstkUon  of  punlsliment  not  problbited. 

This  rule  is  dearly  announced  by  Justice  Chase  in  the  leading  case 
(p.  391),  and  has  often  been  followed;  although  different  courts  have  dif- 
fered in  their  views  as  to  what  constituted  a  mollification  of  the  prior 
penalty.  Lynn  v.  State,  84  Md.  78,  35  Atl.  22;  Hartung  v.  People,  22 
N.  Y.  104 ;  Commonwealth  v.  Wyman,  12  Cush.  239.  Judge  Denio  lays 
down  the  following  rule:  "In  my  opinion  ...  it  would  be  perfectly  com- 
petent for  the  legislature  by  a  general  law  to  remit  any  separable  portion 
of  the  prescribed  punishment,"  as  to  dispense  with  the  fine  or  imprison- 
ment in  a  law  prescribing  both  as  a  penalty,  or  "the  term  of  imprisonment 
might  be  reduced  or  the  number  of  stripes  diminished  in  cases  punishable 
in  that  manner.  Anything  which,  if  applied  to  an  individual  sentence, 
would  fairly  fall  within  the  idea  of  a  remission  of  part  of  the  sentence 
would  not  be  liable  to  objection."  Hartung  v.  People,  22  N.  Y.  95,  105. 
To  a  similar  effect  is  the  language  of  Chief  Justice  Shaw :  "An  act  plainly 
mitigating  the  punishment  of  an  offense  is  not  ex  post  facto;  on  the  con- 
trary it  is  an  act  of  clemency."  Commonwealth  v.  Wyman,  12  Cush.  239, 
where  a  law  changing  the  penalty  for  arson  from  death  to  life  imprison- 
ment, was  held  not  inhibited  when  retrospectively  applied.  People  v. 
Hayes,  140  N.  Y.  491,  492,  37  Am.  St.  Eep.  576,  35  N.  E.  952,  involved  the 
validity  of  a  law  amending  the  pre-existing  punishment  so  that  imprison- 
ment thereundrt*  might  be  for  a  less  but  not  for  a  greater  term;  and  it 
was  held  applicable  to  a  previous  offense.  The  Supreme  Court  of  Mary- 
land has  declared  unobjectionable,  when  retrospectively  applied,  a  statute 
deereasing  from  seven  years  to  one  year,  the  maximum  period  during  which 
the  putative  father  of  a  bastard  child  might  be  imprisoned  for  failure  to 
execute  a  proper  bond  for  its  maintenance.  Lynn  v.  State,  84  Md.  78,  35 
Atl.  22. 

But  in  some  other  jurisdictions  courts  have  upheld  retrospective  laws 
which  were  not  so  clearly  in  mitigation  of  the  previous  penalty.  It  has 
heen  held  that  a  statute  changing  a  penalty  for  aiding  in  the  concealment 
of  stolen  property  from  imprisonment  in  the  penitentiary  for  a  certain 
term  of  years,  to  the  same  penalty  and  "fine  and  imprisonment,  or  both, 
at  the  discretion  of  the  juiy"  was  not  ex  post  facto.  Turner  v.  State,  40 
Ala.  21,  29.  The  ground  of  the  decision  was  that  the  statute  simply  pro- 
vides a  "mitigated  alternative  punishment."  See,  also,  Moore  v.  State,  40 
Ala.  49,  54.  Still  more  at  variance  with  the  doctrine  of  the  New  York 
and  Massachusetts  cases  above,  is  Strong  v.  State,  1  Blackf.  193,  197  (see 
Dawson  v.  State,  6  Tex.  347),  where  a  retrospective  statute  changing  the 
penalty  for  perjury  from  a  maximum  of  one  hundred  stripes,  to  a  maxi- 
mum of  seven  years'  imprisonment,  was  held  valid.  The  decision  was 
hased  ux>on  the  ground  that  the  new  statute  did  not  clearly  increase  the 
punishment,  and  that,  therefore,  the  law  should  be  upheld. 

(4)  Every  law  tbat  alters  the  legal  rules  of  evidence,  and  receives  less,  or 
diffezent  testimony,,  than  the  law  required  at  the  time  of  the  commission  of  the 
offense,  tn  order  to  convict  the  offender. 

"At  other  times,"  said  Justice  Chase,  in  speaking  of  certain  English 
ex  post  facto  laws,  "they  violated  the  rules  of  evidence  (to  supply  a  defi- 


i 


3  DaU.  386-401  NOTES  ON  U.  S.  REPORTS.  69 

ciency  of  legal  proof)  by  admitting  one  witness  when  the  existing  law  re- 
quired two;  by  reoeiving  evidence  without  oath;  or  the  oath  of  the  wife 
against  a  husband,  or  other  testimony,  which  the  courts  of  justice  would 
not  admit/'  It  is  not  surprising  to  find  that  the  application  of  this  branch 
of  the  rule  has  been  attended  with  difficulty.  ^  "Legal  rules  of  evidence" 
shade  off  into  other  rules  of  procedure,  and  it  is  no  easy  task  to  reconcile 
the  authorities  by  adopting  this  basis  of  the  distinction  between  the  admis- 
sible and  the  inadmissible.  The  Supremo  Court  of  New  Jersey  has  ex- 
pressed some  ^oubt  as  to  the  soundness  of  this  statement,  declining  in  the 
Moore  Case  already  discussed,  to  base  its  decision  thereon.  42  N.  J.  L.  208, 
43  N.  J.  L.  203,  39  Am.  Rep.  558.  "Such  a  construction,"  said  Chief  Justice 
Beasley,  speaking  of  this  rule,  "obviously  expends  the  constitutional  pro- 
hibition so  as  to  interdict  an  alteration  by  subsequent  legislation  of  a  part 
of  the  legal  procedure  in  force  at  the  time  of  the  committing  of  the  offense. 
I  am  not  aware  that  this  view  has  been  sanctioned  by  a  judicial  decision." 
42  N.  J.  L.  229.  And  Judge  Dixon  observed :  "It  may  not  be  presumptuous 
to  say  that  doubts  may  be  entertained  whether  this  fourth  class  does  not 
inchide  cases  outside  of  the  prohibition.  .  .  .  Mr.  Bishop  declines  to  assent 
to  it,  and  Chief  Justice  Beasley  mentions  it  with  a  'perhaps'  (vide  supra), 
and  it  is  easy  to  see  that  it  may  entrench  too  far  upon  legislative  control 
over  mere  methods  of  procedure."  43  N.  J.  L.  216,  39  Am.  Rep.  569.  Not- 
withstanding this  criticism,  however,  it  is  sufficiently  apparent  from  the 
decisions  that  the  class  thus  defined  in  the  leading  case  has  proved  not  too 
broad,  but  too  narrow;  and  the  effect  of  the  Kring  Case  and  of  others  to 
be  discussed  below  has  rather  been  to  extend  than  to  restrict  the  operation 
of  the  prohibition. 

Less  or  different  testimony,  what  is. 

An  instance  of  a  statute  declaring  sufficient,  less  or  different  testimony 
than  the  preceding  law  required,  is  to  be  found  in  an  Alabama  case.  A 
statute  of  that  State  which  provided  for  the  conviction  of  an  accused  for 
misdemeanor,  on  the  uncorroborated  testimony  of  an  accomplice,  cor- 
roborating evidence  having  been  required  under  the  old  law,  is  clearly 
ex  post  facto  and  inapplicable  to  prior  offenses.  Hart  v.  State,  40  Ala.  22. 
The  same  is  true  of  a  law  permitting  conviction  upon  circumstantial  evi- 
dence where  a  former  law  demanded  direct  evidence.  This  is  illustrated 
by  State  v.  Johnson,  12  Minn.  484,  485,  93  Am.  Dec.  247,  248,  where  an 
amendatory  statute,  respecting  polygamy,  which  permitted  indirect  or  cir- 
cumstantial evidence  of  cohabitation,  to  prove  a  marriage,  where  formerly 
direct  evidence  only  was  admissible,  was  held  void  when  applied  retrospec- 
tively. So,  too,  a  statute  overthrowing  certain  legal  presumptions  advan- 
tageous to  an  accused,  is  objectionable  if  retrospectively  applied.  As, 
where  a  statute  with  reference  to  the  crime  of  selling  liquor  to  a  slave,  de- 
clared that  the  act  of  the  agent  so  doing  was  to  be  presumed  to  be  the  act 
of  the  principal  (State  v.  Bond,  4  Jones  (N.  C),  10),  or  subverts  the  pre- 
sumption of  innocence  to  which  an  accused  is  entitled.  Cummings  ▼. 
Missouri,  4  Wall.  277,  18  L.  Ed.  356.  A  statute  overthrowing  a  mere  pre- 
sumption as  in  State  v.  Bond,  4  Jones  (N.  C),  10,  differs  from  a  statute 
overthrowing  a  conclusive  presimiption  of  innocence,  since  in  the  latter  case 


50  CALDER  v.  BULL.  3  Dall.  386-401 

the  amount  or  value  of  the  testimony  supporting  the  accusation  is  wholly 
immaterial.  Nevertheless  it  was  held  in  the  Kring  Case/ that  a  law  which 
makes  a  sentence  for  a  lesser  degree  of  murder  operate  as  a  conclusive  pre- 
sumption of  innocence  of  the  greater,  is  a  legal  rule  of  evidence ;  and  that  a 
statute  doing  away  with  this  rule  is  within  this  definition  so  far  as  retro- 
spective hecause  it  ''so  changes  the  rules  of  evidence  that  what  was  conclu- 
sive evidence  of  innocence  of  the  higher  grade  of  murder  when  the  crime  was 
eommitted,  namely,  a  judicial  conviction  for  a  lower  grade  of  homicide,  is 
fiot  received  as  evidence  at  all,  or  if  received,  is  given  no  weight  on  hehalf 
of  the  offender."  Kring  v.  Missouri,  107  U.  S.  228,  27  L.  Ed.  508,  509, 
2  Sup.  Ct.  449.  It  would  seem,  .however,  that  this  point  was  considered 
of  but  little  weight,  and  the  decision  was  rested  mainly  on  other  grounds. 
The  same  would  seem  to  be  true  of  the  decision  of  Ignited  States  v.  Hughes, 
8  Ben.  30,  32,  Fed.  Cas.  16,416. 

As  to  mere  matters  of  procedure. 

A  distinction  is  drawn  in  many  of  the  cases  between  statutes  altering 
rales  of  evidence  and  those  concerned  with  mere  matters  of  procedure. 
State  V.  Moore,  42  N.  J.  L.  228 ;  Moore  v.  State,  43  N.  J.  L.  214,  215,  225, 
231,  39  Am.  Rep.  568,  569,  570;  State  v.  Bond,  4  Jones  (N.  C),  10;  Mrous 
T.  State,  31  Tex.  Cr.  Rep.  699,  37  Am.  St.  Rep.  835,  21  S.  W.  764;  Walston 
V.  Commonwealth,  16  B.  Mon.  37,  39 ;  People  ex  rel.  v.  McDonald,  5  Wyo. 
533,  534,  42  Pac.  17;  State  v.  Hoyt,  47  Conn.  532.  Upon  this  ground  a 
provisi#n  of  the  Kentucky  Criminal  Code  of  1854,  allowing  the  State  a 
right  to  challenge  five  jurors  in  criminal  cases,  none  being  previously  per- 
mitted, was  held  applicable  in  the  trial  of  prior  offenses,  it  being  further 
pointed  oat  that  defendant  had  a  right  not  to  a  partial,  but  to  an  impartial, 
JQjy  merely.  And  similarly  a  statute  increasing  the  number  of  peremptory 
fhallenges  allowed  the  State  from  two  to  twenty  has  been  held  applicable 
in  the  trial  of  a  murder  previously  committed.  State  v.  Hoyt,  47  Conn. 
532;  see,  also,  State  v.  Ryan,  13  Minn.  375,  377.  So,  also,  errors  in  the 
commitment  of  a  prisoner,  as  to  the  place  of  imprisonment  or  time  of 
punishment,  may  also  be  corrected  by  a  retroactive  statute.  Ex  parte 
Bethurum,  66  Mo.  648,  549. 

But  a  diange  In  procedure  may  be  objectionable  ez  t>ost  facto. 

A  distinction  which  excludes  all  matters  of  pirocedure,  however,  does  not 
reach  the  true  line  of  delimitation  between  valid  and*  invalid  retrospective 
<*riminal  laws.  And  it  is  just  here  that  we  have  to  consider  an  important 
principle  which  has  been  introduced  by  the  authorities,  and  which  supple- 
ments the  rule  of  the  leading  case  in  an  important  regard.  It  is  that  a 
change  in  procedure  may  be  objectionable,  although  not  within  the  terms 
of  Mr.  Justice  Chase's  definition,  if  it  operates  to  deprive  an  accused  of 
any  of  those  substantial  rights  which  may  have  been  vested  in  him  at  the 
time  of  the  offense,  and  upon  which  he  was  entitled  to  rely.  Gibson  v.  Mis- 
sissippi, 162  U.  S.  590,  40  L.  Ed.  1081,  16  Sup.  Ct.  910 ;  People  ex  rel.  v. 
McDonald,  5  Wyo.  533,  534,  42  Pac.  17;  State  v.  Thompson,  141  Mo.  417, 
42  8.  W.  951 ;  Hopt  v.  Utah,  110  U.  S.  574,  28  L.  Ed.  262,  4  Sup.  Ct.  202 ; 
Mrous  V.  State,  31  Tex.  Cr.  Rep.  599,  37  Am.  St,  Rep.  835,  21  S.  W.  764. 


\ 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  60 

It  will  be  seen  hereafter  that  the  Supreme  Court  has  gone  further  than 
this  in  some  of  its  ntterances^  though  not  in  its  decisions,  and  has  broadly 
declared  that  any  law  which  "alters  the  situation  of  an  accused  to  his 
disadvantage"  is  iri'valid  ex  post  facto.  Kring  v.  Missouri,  107  U.  S.  231, 
27  L.  Ed.  509,  2  Sup.  Ct.  449 ;  and  see  People  ex  rel.  v.  McDonald,  5  Wyo. 
533,  534,  42  Pac.  17.  But  the  decided  cases  stop  short  of  this  affirmation 
and  hold  retrospective  statutes  affecting  rules  of  evidence  and  other  mat- 
ters of  procedure  inapplicable  only  when  the  change  dispenses  with  some 
substantial  protection  vested  in  the  accused  at  the  time  of  his  offense. 
This  is,  perhaps,  the  true  ground  of  the  decision  that  a  New  Jersey  statute, 
seeking  to  reanimate  a  right  to  prosecute  which  had  expired  by  statute 
of  limitation,  might  not  be  so  applied,  because  ex  post  facto.  Moore  v. 
State,  43  N.  J.  L.  203,  214,  215,  225,  231,  39  Am.  Rep.  568,  569,^570.  And 
also  the  true  ground  of  several  other  cases,  although  they  affirm  the  prin- 
ciple rather  in  the  broader  form  in  which  it  appears  in  the  Kring  Case. 
Thus  a  Georgia  statute,  enacting  that  a  juror  is  incompetent  only,  if  his 
opinion  as  to  the  guilt  or  innocence  of  the  accused  has  been  formed  from 
sworn  testimony,  was  held  ex  post  facto  when  applied  to  prior  offenses, 
the  old  rule  having  been  that  a  juror  was  incompetent  who  had  previously 
formed  any  opinion  in  the  matter  at  all.  The  decision  was  put  upon  the 
ground  that  the  practical  effect  of  the  new  law  was  "greatly  to  impair 
the  chance  for  acquittal;  .  .  .  and  that  if  not  ex  post  facto,  technically 
speaking,  such  a  law  had  a  retrospective  operation  which  ought  not  to  bf 
sanctioned  in  the  criminal  law.*'  Rejmolds  v.  State,  1  Ga.  228.  Similarly 
a  statute  requiring  the  jury  to  assess  the  punishment  in  certain  cases 
had  been  held  inapplicable  to  pre-existing  offenses,  6n  'the  ground  that 
such  a  law  prejudiced  the  situation  of  the  accused.  Holt  v.  State,  2  Tex. 
363,  364.  A  State  constitutional  provision  withdrawing  riprht  of  jury  trial 
altogether  is  objectionable,  ex  post  facto.  State  ex  rel.  v.  Baker,  24  South. 
241.  And,  again,  in  the  Kring  Case,  already  adverted  to,  a  law  which 
made  a  plea  of  guilty  of  murder  in  the  second  degree  operate  as  an  ac- 
quittal of  murder  in  the  first  degree,  was  replaced  by  a  statute,  declaring 
this  rule  inoperative,  where  the  judgment  on  the  plea  of  guilty  was  there- 
after lawfully  set  aside.  This  amendatory  statute  was  held  inapplicable 
to  the  case  of  a  defendant  whose  offense  was  committed  under  the  old 
law,  although  it  was  strenuously  argued  that  the  change  was  a  mere 
alteration  "of  a  rule  of  procedure.  Kring  v.  Missouri,  107  U.  S.  231,  27 
L«  Ed.  509,  2  Sup.  Ct.  449;  see,  also,  in  a  Colorado  case  a  statute  repeal- 
ing a  provision  whereby  a  plea  of  guilty  operating  as  a  conviction  of  murder 
in  the  second  degree,  was  held  inapplicable  ex  post  facto.  Garvey  v. 
People,  6  Colo.  565,  45  Am.  Rep.  536. 

If  change  in  procedure  depriye  an  accuaed  of  no  substantial  rlglits  It  Iq 
unobjectionable. 

But  if  the  change  in  procedure  does  not  deprive  an  accused  of  any  of 
those  substantial  and  vested  rights  to  which  he  is  entitled,  it  is  unobjec- 
tionable. Upon  this  ground  it  was  held  that  a  law,  giving  to  justices  of 
the  peace  jurisdiction  of  cases  of  intoxication,  may  be  applied  in  the  trial 
of  a  pre-existing  cause.    Stat«  v.  Welch,  65  Vt.  54,  25  Atl.  901.    The  num- 


61  CALDER  V.  BULL.  3  Dall.  386-^1 

ber  of  trial  ju^es  within  a  given  jurisdiction  may  be  enlarged.  State  ▼. 
Thompson,  141  Mo.  417,  42  S.  W.  951.  And  in  Jones  v.  Commonwealth, 
86  Va.  663,  10  S.  E.  1006,  a  /law  dispensing  with  a  preliminary  examina- 
tion in  criminal  proceedings  was  held  applicable  to  the  trial  of  an  offense 
previonsly  committed,  on  the  ground  that  no  vested  right  of  the  defendant 
was  infringed.  Similarly  a  law  providing  that  criminal  prosecutions 
might  be  either  by  information  or  indictment,  as  thus  applied,  was  declared 
not  objectionable.  In  re  Wright,  3  Wy6.  481,  483,  31  Am.  St.  Bep.  97,  99, 
27  Pac.  566;  567.  As  also  a  law  changing  the  method  of  prosecution  from 
indictment  to  information  (Lybarger  v.  State,  2  Wash.  557,  27  Pac.  450) ; 
a  law  permitting  prosecution  by  either  of  these  proceedings  instead  of  but 
one  (Sage  v.  State,  127  Ind.  19,  26  N.  E.  669) ;  and  a  statute  taking  from 
the  jury  power  to  judge  lK>th  law  and  fact  (Marion  v.  State,  20  Neb.  233, 
29  N.  W.  911).  The  number  of  trial  jurors  may  be  reduced  from  twelve 
to  eight  in  the  trial  of  a  prior  homicide  (State  v.  Bates,  14  Utah,  304,  47 
Pac.  81)  ;  no  rights  of  an  accused  are  impaired  by  a  statute  subsequent 
to  the  offense  charged,  imposing  certain  qualifications  on  jurors,  and  re- 
quiring that  they  possess  good  intelligence,  sound  judgment  and  fair  char- 
acter (Gibson  v.  Mississippi,  162  U.  S.  590,  40  L.  Ed.  1081,  16  Sup.  Ct. 
910).  "The  inhibition  upon  the  passage  of  ex  post  facto  laws,"  said  the 
national  Supreme  Court,  "does  not  give  a  criminal  a  right  to  be  tried,  in 
all  respects,  by  the  law  in  force  when  the  crime  charged  was  committed. 
The  mode  of  trial  is  always  under  legislative  control,  subject  only  to  the 
condition  thai  the  legislature  may  not,  under  the  g^ise  of  establishing 
modes  of  procedure  and  prescribing  remedies,  violate  the  accepted  prin- 
ciples that  protect  an  accused  person  against  ex  post  facto  enactments." 
And  it  has  been  held  elsewhere,  after  an  elaborate  review  of  the  authori- 
ties, that  the  repeal  of  a  statute,  allowing  an'  accused  upon  a  certain  show- 
ing of  fact,  a  change  of  venue  for  his  preliminary  examination,  violates 
no  substantial  right  and  is  not  ex  post  facto.  People  ex  rel,  v.  McDonald, 
5  Wyo.  533,  42  Pac.  17.  Furthermore  it  is  settled  that  a  statute  which 
merely  enlai^es  the  class  of  persons  competent  to  testify  affects  no  vested 
rights  of  an  accused.  The  State  may,  therefore,  apply  an  enactment 
rendering  convicted  felons  competent  witnesses,  in  the  trial  of  a  prior 
offense  (Hopt  v.  Utah,  110  U.  S.  574,  28  L.  Ed.  262,  4  Sup.  Ct.  202) ;  or  a 
statute  making  a  seduced  female  a  competent  witness,  in  a  prosecution 
for  the  seduction,  prior  to  the  statute.  Mrous  v.  State,  31  Tex.  Cr.  Rep. 
599,  87  Am.  St.  Bep.  836,  21  S.  W.  764.  In  the  Texas  case  the  court 
declared  that  "Removing  restrictions  upon  the  competency  of  certain 
classes  of  witnesses  relates  to  mode  of  procedure  only,  in  which  no  one  can 
be  said  to  have  a  vested  right,  and  which  the  State,  on  grounds  of  public 
policy,  may  regulate  at  pleasure.  Laughlin  v.  Commonwealth,  13  Bush, 
261."  Mrous  v.  State,  31  Tex.  Cr.  Rep.  600,  87  Am.  St.  Rep.  835,  21  S.  W. 
764.  A  similar  question  was  raised  in  Commonwealth  v.  Homer,  153  Mass. 
343,  26  N.  E.  872,  but  the  court  disposed  of  the  point  by  holding  that  it 
did  not  plainly  appear  that  the  law  was  intended  to  retrospect  at  all. 
An  act  permitting  the  comparison  by  witnesses  and  jury  of  a  writing,  the 
genuineness  of  which  was  in  dispute,  with  others  admittedly  genuine,  and 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  62 

making  admissible  the  testimony  deduced  therefrom,  is  applicable  in  the 
trial  of  an  offense  committed  at  a  time  when  this  line  of  proof  was  inad- 
missible. State  V.  Thompson,  141  Mo.  417,  42  S.  W.  951,  affirmed  in  171 
U.  S.  382,  383,  48  L.  Ed.  206,  18  Sup.  Ct.  922,  923.  See,  also,  the  learned 
opinion  rendered  by  the  Supreme  Court  of  Wyoming,  per  Qroesbeck,  C.  J., 
where  the  cases  in  which  mere  changes  in  procedure  have  been  held  un- 
'  objectionable  are  Vsummarized.  People  ex  rel.  v.  McDonald,  6  Wyo.  533, 
534,  42  Pac.  17;  see,  also.  Murphy  v.  Commonwealth,  52  N.  E.  507,  a 
Massachusetts  case  reviewing  the  authorities  and  upholding  a  statute 
imposing  indeterminate  sentences. 

Definition  of  tlie  leading  case  as  affected  by  Krlng  ▼.  Missouri. 

It  only  remains  to  consider  the  decision  in  the  Hiring  Case,  with  the 
definition  of  the  ex  post  facto  laws,  which  it  offered,  and  its  effect  upon 
the  authority  of  that  laid  down  in  the  principal  case.  Kring  v.  Missouri 
was  the  first  case  in  which  the  Supreme  Court  felt  called  upon  to  with- 
hold its  approval  from  the  long-established  definition  of  Justice  Chase, 
and  the  majority  opinion  contains  a  statement  of  the  ex  post  facto  pro- 
hibition which  was  manifestly  believed  to  be  more  nearly  accurate.  See 
People  V.  McDonald,  5  Wyo.  533,  43  Pac.  17.  "An  ex  post  facto  law," 
it  was  said,  ''is  one  which,  in  its  operation,  makes  that  criminal  which  was 
not  so  at  the  time  the  action  was  performed;  or  which  increases  the  pun- 
ishment, or,  in  short,  which  in  relation  to. the  offense  or  its  consequences, 
alters  the  situation  of  a  party  to  his  disadvantage."  According  to  this 
definition  which,  it  was  affirmed,  was  a  correct  exposition  of  the  term, 
the  law  in  question  in  the  case  at  bar  was  declared  invalid  as  thus  applied; 
because  taking  away  what,  by  the  law  of  the  State  at  the  time  of  the 
homicide,  was  a  good  defense  to  the  charge  of  murder  in  the  first  degree. 
The  dissenting  judges  relied  largely  upon  the  definition  of  the  principal 
case,  which,  they  insisted,  included  all  objectionable  forms  of  retrospective 
criminal  legislation.  Obviously  the  proposition  that  a  law  which  alters  the 
situation  of  an  accused  to  his  disadvantage  is  objectionable  when  applied 
ex  post  facto  broadens  the  scope  and  operation  of  the  constitutional  pro- 
hibition considerably  beyond  the  definition  of  the  leading  case.  It  is  ap- 
parent, also,  that  it  is  broad  enough  to  include  all  the  laws  declared  ex  post 
facto,  which  could  not  be  brought  fairly  within  the  definition  of  Calder 
V.  Bull.  But  the  difficulty  with  it  is  that  it  seems  to  be  too  broad,  and 
must  be  received  with  caution.  It  would  include  changes  in  procedure 
which  have  been  declared  unobjectionable^  because  depriving  of  no  vested 
right,  although  manifestly  to  the  possible  disadvantage  of  an  accused. 
Hopt  V.  Utah,  110  U.  S.  574,  28  L.  Ed,  262,  4  Sup.  Ct.  202;  Mrous  v.  State, 
31  Tex.  Cr.  Repi  599,  37  Am.  St.  Rep.  835,  21  S.  W.  764.  "That  decision," 
observed  the  Supreme  Court  of  Indiana,  with  reference  to  Kring  v. 
Missouri,  "does  not  go  to  the  extent  of  breaking  down  the  general  rule 
so  long  approved  by  the  courts  and  text- writers,  for  the  most  that  can  be 
said  of  that  decision  is  that  it  declared  the  mode  of  procedure  may  some- 
times so  far  materially  affect  the  rights  of  an  accused  as  to  fall  within 
the  sweep  of  the  constitutional  provision  prohibiting  the  enactment  of 
ex  post  facto  laws."     Sage  v.  State,  127    Ind.  19,  20,  26  N.  E.  669.    It 


63  CALDER  v.  BULL.  3  Ball.  386-101 

mmld  be  a  mistake  to  suppose  that  it  has  supplanted  the  definition  of  the 
(flincipal  ease.  And  while  the  authorities  recognize  the  modification 
which  the  Kring  Case  introduced  (In  re  Medley,  134  U.  S.  160,  SS  L.  Ed. 
835.  10  Sup.  Ct.  384 ,  People  ex  rel.  v.  McDonald,  6  Wyo.  533,  42  Pac.  17) ,  * 
they  still  cite,  and  to  a  large  extent  follow,  the  early  decision.  State  v. 
Welch,  65  Vt.  54,  25  Atl.  901 ;  Jones  v.  Commonwealth,  86  Va.  663, 10  S.  E. 
1006;  Lybarger  v.  State,  2  Wash.  557,  27  Pac.  450;  People  v.  Hawker,  152 
N.  Y.  234,  240,  46  N.^E.  608;  Hawker  v.  New  York,  170  U.  S.  201,  42  L.  Ed. 
1007,  18  Sup.  Ct:  578 ;  In  re  Wright,  3  Wyo.  481,  483,  31  Am.  St.  Rep.  97, 
W,  27  Pac.  666,  667;  People  ex  rel.  v.  McDonald,  5  Wyo.  533,  42  Pac.  17; 
Gibson  v.  Mississippi,  162  U.  S.  590,  40  L.  Ed.  1081,  16  Sup.  Ct.  910;  Lynn 
V.  State,  84  Md.  78,  35  Atl.  22 ;  Thompson  v.  Missouri,  171  U.  S.  382,  383, 
43  L.  Ed.  206,  18  Sup.  Ct.  922,  923. 

The  syllabus  point  has  been  distinguished  in  People  v.  Turner,  116  Mich. 
391,  74  N.  W.  519,  arguendo. 

Ex  post  facto  laws.    Notes,  45  Am.  Rep.  644,  546;  37  Am.  St.  Rep. 
588,  594,  596. 

Laws  changing  punishment  as  ex  post  facto  laws.    Note,  8  Ann.  Gas. 
78.  ( 

Constitutional  provision  against  ex  post  facto  laws  as  applicable  to 
judicial  decision.    Note,  Ann.  Gas.  19140,  228. 

Statute  changing  existing  law  respecting  peremptory  challenges  as  ex 
post  facto.    Note,  Ann.  Gas.  1912B,  812. 

Ex  <  post  facto,  repeal  of  statute  excluding  evidence  obtained  by  judi- 
cial proceedings.    Note,  87  L.  R.  A.  (N.  S.)  97. 

Betrospectlve  statutes  are,  in  general,  to  1>e  condemned,  althougb  they  may 
be  beneficial;  and  a  statute  should,  If  possible,  be  construed  prospectively  only; 
but  even  if  deariy  retrospective,  or  if  really  an  exercise  of  Judicial  functions, 
they  violate  no  Federal  limitations. 

In  applying  the  syllabus  point  the  following  cases,  which  approve  the 
rule  there  laid  down  are  of  interest :  League  v.  Texas,  184  U.  S.  161,  46 
L  Ed.  481,  22  Sup.  Ct.  477,  holding  retroactive  legislation  is  not  repugnant 
to  Fourteenth  Amendment;  State  v.  Travelers'  Ins.  Co.,  73  Conn.  285,  57 
L.  R.  A.  481,  47  Atl.  310,  construing  Gen.  Stats.,  §  3836,  relative  to  taxation 
of  shares  of  insurance  companies;  State  v.  Williams,  146  N.  C.  622,  14  Ann. 
Gas.  562,  17  L.  R.  A.  (N.  S.)  299,  61  S.  E.  62,  holding  void  statute  forbid- 
ding carrying  more  than  one-half  gallon  of  alcoholic  liquor  into  certain 
county;  Wilson  v.  Brinn,  124  N.  C.  722,  33  S.  E.  147,  148,  construing  act 
of  March  6, 1899,  abolishing  courts  named  in  acts  of  1895  and  1897 ;  Ward 
Lumber  Co.  v.  Henderson- White  Mfg.  Co.,  107  Va.  634,  17  L.  R.  A.  (N.  S.) 
324,  69  S.  E.  479,  upholding  law  authorizing  service  of  process  on  corpora- 
tions by  publication  where  they  have  no  agent  in  county  of  suit;  Win- 
chester etc.  R.  Co.  V.  Commonwealth,  106  Va.  268,  269,  55  S.  E.  693,  uphold- 
ing law  creating  state  corporation  commission. 

A  retrospective  statute  is  that  which  takes  away  or  impairs  any  vested 
right  acquired,, under  existing  laws,  or  creates  a  new  obligation^  or  imposes 


/ 


3  DaU.  386-401  NOTES  ON  U.  S.  REPORTS.  64 

a  new  duty,  or  attaches  a  new  disability,  in  respect  to  transactions  or  con- 
siderations already  passed,  or  gives  some  different  l^al  effect  to  some 
previous  transaction  to  that  which  it  had  under  the  law  when  it  took  place. 
Sedgwick  on  Stat.  &  Const.  Law,  2d  ed.  1874,  p.  160;  Cooley's  Const.  Lim., 
6th  ed.,  p.  464;  Wade  on  Retroactive  Laws,  §§  1,  194,  263;  City  of  New 
Orleans  v.  New  Orleans  etc.  R.  R.  Co.,  36  La.  Ann.  682;  Society  etc.  v. 
Wheeler^  2  Gall.  138, 139,  Fed.  Cas.  13,166;  Frellsen  v.  Mahan,  21  La.  Ann. 
104.  But  a  mere  incidental  reference  to  past  acts,  as  in  a  statute  author- 
izing the  imposition  of  a  tax  according  to  a  previous  assessment,  is  not 
within  the  meaning  of  this  definition.  Locke  v.  New  Orleans,  4  Wall.  174, 
18  L.  Ed.  335;  FrelLsen  v.  Mahan,  21  La.  Ann.  104.  Neither  is  the  appli- 
cation of  the  rate  of  interest  prescribed  by  a  new  law  to  a  previous  loan, 
where  such  loan  was  not  paid  and  there  was  a  continual  refusal  or  neglect 
to  pay  it,  a  retrospective  operation  of  such  law;  because  the  new  law  takes 
effect  upon  a  new  violation  of  the  former  obligation.  Bullock  v.  Boyd,  1 
Hoff.  Ch.  303. 

A  law  should  have  no  retrospect. 

It  is  laid  down  in  the  leading  case  and  is  the  established  rule  that  a  law 
should  have  no  retrospect.  Chief  Justice  Kent  says:  "The  very  essence 
of  a  new  law  is  a  rule  for  future  cases."  Dash  v.  Van  Kleeck,  7  Johns. 
477,  502,  5  Am.  Dec.  308.  To  the  same  effect  is  the  maxim  nova  constitutio 
futilris  formam  debet  imponere,  non  praeteritis,  quoted  by  Thompson,  J., 
in  the  same  case,  and  by  many  other  cases  asserting  this  rule.  People  v. 
San  Francisco,  4  Cal.  135;  Forsyth  v.  Marbury,  Charlt.  (Ga.)  329;  Bryce 
V.  Holmes,  2  Ala.  56.  Based  upon  the  same  reasoning  as  the  rule  that  a 
law  should  have  no  retrospect  is  the  constantly  reiterated  assertion  of  the 
courts  that  legislation  of  this  character  is  "generally  unjust,  and  may  be 
oppressive,"  and  "that  there  is  neither  policy  nor  safety  in  such  laws  .  .  . 
they  accord  neither  with  sound  legislation  nor  the  fundamental  principles 
of  the  social  compact";  Calder  v.  Bull,  3  DaU.  386,  397,  see,  also.  Dash  v. 
Van  Kleeck,  7  Johns.  489,  491,  499,  607,  5  Am.  Dec.  298,  299,  305,  312 ;  Davis 
V.  Minor,  1  How.  (Miss.)  193,  28  Am.  Dec.  331;  Denio  ex  dem.  Berdan  v. 
Van  Riper,  16  N.  J.  L.  10, 14;  Scott  v.  Smart,  1  Mich.  295,  302,  307;  Boston 
V.  Cummins,  16  Ga.  107,  60  Am.  Dec.  720 ;  Lane  v.  Nelson,  79  Pa.  St.  410 ; 
Hess  V.  Werts,  4  Serg.  &  R.  364;  Fisher  v.  Cockerill,  6  T.  B.  Mon.  138;  dis- 
senting opinion  in  Cunningham  v.  Dixon,  1  Marv.  (Del.)  170,  41  Atl.  622. 

The  legislative  Intent  that  tbe  law  retroact  must,  therefore,  be  clearly 
ezpressed. 

It  must  clearly  appear  from  the  words  and  spirit  of  the  statute  that  it 
was  intended  by  the  legislature  to  be  applied  retroactively.  This  rule  has 
already  been  asserted  with  reference  to  ex  post  facto  laws;  it  applies 
equally  to  civil  and  criminal  statutes.  In  addition  to  the  authorities  there 
cited,  see  Fisher  v.  Cockerill,  6  T.  B.  Mon.  138;  Wheelwright  v.  Greer,  10 
Allen,  391;  People  v.  San  Francisco,  4  Cal.  136;  Forsyth  v.  Marbury, 
Charlt.  (Ga.)  329;  Boyce  v.  Holmes,  2  Ala.  66;  Danville  v.  Pace,  26  Gratt. 
10,  18  Am.  Rep.  669;  Hannum  v.  Bank  of  Tennessee,  1  Cold.  402.  As  has 
been  said,  it  is  not  enough  that  a  retrospective  effect  might  be  given  to  the 


65  CALDER  v.  BULL.  3  Dall.  386-401 

statute  without  doing  violence  to  the  words,  the  intention  that  it  retrospect 
most  he  clearly  and  anequivoeally  expressed.  Thus,  a  New  York  statute 
was  iconstraed  hy  the  courts  in  such  a  way  that  a  sheriff  could  not  set  up 
as  defense  in  an  action  of  deht  for  the  escape  oi  a  prisoner,  the  subsequent 
recaption  of  such  prisoner.  A  later  statute  declaring,  "That  nothing  in 
the  former  act  shall  be  construed  to  prevent"  the  setting  up  of  such  de- 
fense, was  held  inapplicable  to  a  case  then  pending.  Dash  v.  Van  Kleeck, 
7  Johns.  489,  ^1,  499,  507,  5  Am.  Dec.  298,  299,  S05,  312.  A  Georgia  stat- 
ute declared  that  "from  and  after  the  passage  of  this  act"  securities  on 
appeal  and  injunction  bonds  need  not  be  parties  to  a  writ  of  error;  and 
this  was  held  not  to  include  cases  pending.  Wilder  v.  Lumpkin,  4  Ga.  208, 
214,  215,  218.  In  Massachusetts  a  statute  declared  that  if  a  woman  en- 
titled to  make  complaint  for  the  support  of  bastard  children  failed  to  do 
so.  that  certain  officers  "may  make  the  complaint."  This  was  held  inappli- 
cable to  the  case  of  children  bom  before  the  passage  of  the  act.  Wheel- 
wright V.  Greer,  10  Allen,  391.  A  law  enacting  that  "in  any  suit  which 
shall  hereafter  be  commenced"  persons  ejected  by  paramount  title  might 
recover  the  value  of  improvements  made,  was  held  by  the  Supreme  Court  of 
Alabama  not  to  apply  in  a  subsquent  suit  over  previous  improvements. 
Boyce  v.  Holmes,  2  Ala.  56.    Contra,  Bacon  v.  Callender,  6  Mass.  303. 

If  the  law  retroactively  construed  would  have  the  effect  to  impair  vested 
rights,  the  courts  are  still  more  loath  to  accept  such  an  interpretation  on 
the  ground  that  it  is  strongly  to  be  presumed  that  the  legislature  did  not 
in  fact  intend  the  statute  so  to  operate.  Lewis  v«  Brackenridge,  1  Blackf . 
222,  12  Am.  Dec.  2S0;  Steele  v.  Steele,  64  Ala.  452;  State  v.^Sqiiircs,  26 
Iowa,  346 ;  Lowe  v.  Harris,  112  N.  C.  480,  17  S.  E.  540;  Forsyth  v.  Marbuiy, 
Charlt.  (Ga.)  329.  "Whenever  an  act  is  susceptible  of  a  prospective  opera- 
tion," said  the  Georgia  Supreme  Court,  "which  although  not  favored  by  the 
exact  letter,  yet  may  well  stand  with  the  general  scope  of  the  statute,  it 
shall  be  so  construed  rather  than  retroactively  so  as  to  take  away  a  vested 
risrht."  Forsyth  v.  Marbury,  Charlt,  324,  333,  334.  In  holding  a  law  ex- 
tending the  time  of  the  statute  of  limitations  not  to  operate  to  revive  old 
elaims,  the  Supreme  Court  of  Mississippi  declared  that  so  construed  it 
woald  divest  vested  rights,  and  observed:  "The  intention  of  the  law  giver 
is  the  best  rule  of  expounding  statutes;  and  when  it  can  be  discovered, 
according  to  Lord  Bacon,  it  ought  to  prevail,  even  though  it  be  contrary  to 
the  letter."  Davis  v.  Minor,  1  How.  (Miss.)  183,  194,  28  Am.  Dec  832. 
Similarly  a  Maine  statute  validating  a  previous  marriage,  void  through 
some  informality,  was  held  constitutional  in  this  aspect;  but  the  court  de- 
clared that  such  a  statute  was  not  to  be  presumed  to  contemplate  other 
retroactive  effects  which  might  follow,  such  as  removing  the  obligation  to 
pay  for  the  past  support  of  paupers  so  married,  from  one  town,  and  placing 
it  upon  another ;  that  as  so  construed  it  would  affect  vested  rights,  and  that 
the  legislature  was  not  to  be  supposed  to  have  intended  these  consequences, 
Bnmswiek  v.  Litchfield,  2  Greenl.  (Me.)  33.  And  see  Lewis  v.  Bracken- 
ridge, 1  Blackf.  220,  222,  12  Am.  Dec.  280;  Steele  v.  State,  64  Ala.  452; 
State  V.  Squires,  26  Iowa,  346;  Lowe  v.  Harris,  112  N,  C.  472,  480, 17  S.  E. 
MO. 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  66 

When  remedial  or  iMiieflciaL 

But  this  presumption  against  retrospective  intent  is  not  so  strong  when 
the  statute  is  beneficial  or  remedial,  and  in  accordance  with  natural  equity. 
In  Larkin  v.  Saffarans,  15  Fed.  150,  Hammond,  J.,  held  an  act  of  Congress 
conferring  additional  jurisdiction  on  the  Circuit  Courts,  without  any  ex- 
press reference  to  pending  cases,  to  be  applicable  to  them,  and  based  his 
decision  on  this  ground.  Statutes  of  oblivion  or  pardon  fall  under  this 
head;  or  a  law  curing  a  defect  in  a  conveyance  of  land  (Mercer  v.  Watson, 
1  Watts,  356 ,  affirmed  in  8  Pet.  110,  8  L.  Ed.  884 ;  Lane  v.  Nelson,  79  Pa. 
St.  410 ;  Wilkinson  v.  Leland,  2  Pet.  661,  7  L.  Ed.  554) ;  statutes  legalizing 
a  previous  issue  of  bonds  (McMillen  v.  County  Judge,  6  Iowa,  394;  Bass 
v.  Mayor  etc.,  30  Ga.  851) ;  statutes  validating  marriages  void  for  some 
minor  defect  (Goshen  v.  Stonington,  4  Conn.  209,  224,  226,  10  Am.  Dec.  128, 
180;  Boston  v.  Cummins,  16  Ga.  107,  60  Am.  Dec.  720).  It  is  perhaps  safe 
to  lay  it  down  as  a  general  rule  that  laws  coming  under  this  head  include 
most,  if  not  all,  of  those  retrospective  laws  which  are  upheld  as  valid  by 
the  court.  "There  are  cases,"  observed  Chief  Justice  Chase  in  the  prin- 
cipal case,  "in  whicK  laws  may  justly,  and  for  benefit  of  the  community, 
and  also  of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment." On  this  same  point  Chief  Justice  Hosmer  says:  "I  very  much  ques- 
tion whether  there  is  an  existing  government  in  which  laws  of  a  retroactive 
nature  and  effect,  impairing  vested  rights,  but  promotive  of  justice  and  tl(e 
ereneral  good,  have  not  been  passed."  (Joshen  v.  Stonington,  4  Conn.  209, 
222,  10  Am.  Dec.  126.  And  see  Fisher  y.  Hi^ns,  5  T.  B.  Mon.  140,  148, 
149.  ' 

Not  speciflcally  prohibited  in  the  national  Constitution. 

This  follows  practically  from  the  proposition  that  ex  post  facto  applies 
to  criminal  laws  only,  and  was  directly  involved  and  passed  upon  in  the 
leading  case.  The  prohibition  against  laws  impairing  the  obligation  of 
contracts  places  the  ban  of  unconstitutionality  on  retrospective  civil  laws 
of  that  character;  and  since  the  adoption  of  the  Fourteenth  Amendment, 
retrospective  laws  which  work  a  deprivation  of  property  without  due  pro- 
cess of  law  are  also  inhibited.  Freeland  v.  Williams,  131  U.  S.  420,  83 
L.  Ed.  199,  9  Sup.  Ct.  768.  A  similar  provision  is  contained  in  the  Con- 
stitutions of  the  States  generally,  and  the  effect  of  this  limitation  upon  the 
principles  underlying  the  power  to  enact  retrospective  laws  will  be  con- 
sidered on  a  subsequent  page. 

Aside  from  the  limitations  which  these  clauses  have  put  upon  the  power 
to  pass  retrospective  laws,  the  national  Constitution  contains  no  restric- 
tions controlling  such  legislation.  "That  there  exists  a  general  power  in 
the  State  governments,"  said  the  court  in  Baltimore  etc.  R.  R.  v.  Nesbit, 
10  How.  410,  13  L.  Ed.  472,  '*to  enact  retrospective  or  retroactive  laws, 
is  a  point  too  well  settled  to  admit  of  question  at  this  day."  ** There 
is  certainly  no  part  of  the  Constitution  of  the  United  States  which  applies 
to  a  State  law  of  this  description;  nor  are  we  aware  of  any  decision  of 
this,  or  of  any  Circuit  Court,  which  has  condemned  such  a  law  upon  this 
ground,  provided  its  effect  be  not  to  impair  the  obligation  of  a  contract." 


/ 


67  CALDER  v.  BULL.  3  Dall.  386-401 

Saiterlee  v.  Matthewson,  2  Pet.  380,  413,  7  L.  Ed.  469,  afifirming  the  deci- 
sion in  the  Pennsylvania  court,  16  Sergs  &  R.  186.  See,  also,  Watson  v. 
Mercer,  8  Pet.  110,  8  L.  Ed.  884;  Carpenter  v.  Pennsylvania,  17  How.  463, 
15  L.  Ed.  129;  Freeland  v.  Williams,  131  U.  S.  420,^  33  L.  Ed.  199,  9  Sup. 
Ct.  768;  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420,  9  L.  Ed.  773; 
Albee  v.  May,  2  Paine,  79,  Fed.  Cas.  134;  Wilson  v.  Hardesty,  1  Md.  Ch. 
68;  Buekner  v.  Street,  1  Dill.  264;  7  Bank.  Reg.  262,  Fed.  Cas.  2098.  It 
may,  therefore,  be  afl&rmed  that  jetrospective  laws,  with  the  above-noted  / 

exceptions,  are  valid,  unless  prohibited  in  the  fundamental  law  of  the  sev- 
eral States.  This  rule  is  recognized  in  the  above  cases,  and  in  many  others, 
among  which  may  be  mentioned,  Scott  v.  Smart,  1  Mich.  295,  302,  307; 
Coles  v.  Madison  Co.,  Breese,  156,  12  Am.  Dec.  163;  Danville  v.  Pace,  25 
Gratt.  10,  18  Am.  Rep.  669;  Henderson  R.  R.  v.  Dickerson,  17  B.  Mon.  177, 
6B  Am.  Dec.  149,  150 ;  Bonner  v.  Martin,  40  Ga.  505 ;  Peerce  v.  Kitzmiller, 
19  W.  Va.  573,  577 ;  Fisher  v.  Higgins,  5  T.  B.  Mon.  148. 

Of  the  proper  scope  or  retrospective  legislation. 

Notwithstanding  all  that  may  be  said  against  retrospective  legislation, 
there  is  a  well-recognized  field  for  its  legitimate  operation.  "Whence," 
ssks  Saltonstall,  J.,  i^  Foster  v.  Essex  Bank,  16  Mass.  245,  261,  in  conced- 
ing the  power  to  enact  retrospective  laws,  "whence,  it  may  be  asked,  does 
this  arise  ?  From  the  necessary  imperfections  of  human  society.  If  society 
were  so  perfect  as  never  to  be  in  need  of  occasional  remedial  and  equi- 
table regolatioais,  by  means  of  retrospective  laws,  it  would,  perhaps,  hardly 
need  any  laws."  "A  legislature,''  says  Parker,  C.  J.,  in  the  same  case, 
"which  in  its  acts  not  expressly  authorized  by  the  Constitution,  limits  itself 
to  correcting  mistakes,  and  to  providing  remedies  for  the  furtherance  of 
justice,  cannot  be  charged  with  violating  its  duty  or  exceeding  its  author- 
ity." Laws  may  therefore  retrospect  when  beneficial  in  their  objects,  vio- 
lating no  true  equitable  rights,  and  operating  in  furtherance  of  essential 
justice.  And  this  proposition  may  thus  be  illustrated :  A  and  his  wife 
attempted  to  convey  the  estate  of  the  wife  by  a  deed  defectively  acknowl- 
edged; after  the  wife's  death,  the  grantees  under  the  deed  were,  by  reason 
of  this  defect,  ejected  by  the  heirs  at  law.  The  legislature  subsequently 
remedied  the  defective  deed,  and  the  grantees  thereunder  were  thus  en- 
abled to  recover  the  land  which  A  and  his  wife  intended  to  convey  to  them. 
The  law  thus  applied  was  held  valid.  Mercer  v.  Watson,  1  Watts,  356, 
affirmed  in, 8  Pet.  110,  8  L.  Ed.  884;  and  see,  also,  to  the  same  effect,  Ran- 
dall v.  Kreiger,  23  Wall.  149,  23  L.  Ed.  126;  again,  B  and  his  wife  attempted 
to  convey  a  parcel  of  land  to  C  by  a  deed  defectively  acknowledged ;  by  a 
later  valid  deed  the  property  was  conveyed  to  D,  who  was  ignorant  of  the 
T>rior  deed.  A  subsequent  statute^ gave  validity  to  the  defective  deed  to 
C.  but  this  was  held  inapplicable  to  divest  D,  an  innocent  purchaser  for 
value,  of  his  vested  right  in  the  property.  Brinton  vT  See  vers,  12  Iowa, 
389.  Nor  can  it  be  said  that  retrospective  laws  whose  operation  is  benefi- 
cial and  in  furtherance  of  justice,  violate  any  vested  rights,  for  as  said 
by  Parker,  C,  J.,  "There  is  no  such  thing  as  a  vested  right  to  do  wrong." 
Foster  v.  Essex  Bank,  16  Mass.  245,  273.  Advantages  acquired  through  a 
mere  slip  of  fo^  and  contrary  to  natural  justice  are  not  vested  rights  to 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  68 

be  protected  by  the  courts.  Freeland  v.  Williams,  131  U.  S.  420,  33  L.  Ed. 
199,  9  Sup.  Ct.  768.  But  in  remedial  legislation  of  this  character,  it  must 
appear  that  the  legislature  had  power  to  dispense  with  the  necessity  for 
•  such  a  formality,  or  whatever  it  may  be,  by  prior  statute,  ere  it  be  declared 
capable  of  remedying  it  by  subsequent  law.  To  illustrate:  Certain  min- 
isters of  the  gospel,  having  been  in  the  habit  of  performing  marriage  cere- 
monies in  Connecticut,  who  were  not  empowered  by  the  State  law  to  per- 
form the  marriage  ceremony,  it  came  about  that  many  parties  who  had 
been  regarded  as  properly  married  were  not  so  in  fact;  the  legislature 
accordingly  passed  a  law  declaring  that  previous  marriages,  so  performed, 
were  to  be  considered  as  valid.  This  law  was  upheld  by  the  court  as  a 
valid  exercise  of  power.  Goshen  y.  Stonington,  4  Conn.  209,  224,  226,  10 
Am.  Dec.  128,  130.  See,  also,  State  v.  Adams,  65  N.  C.  537.  Again,  a 
board  of  public  works  in  the  District  of  Columbia,  having  entered  into  con- 
tracts for  the  improvement  of  streets,  and  levied  taxes  therefor  without 
specific  authority.  Congress  subsequently  passed  an  act  ratifying  such  ac- 
tion, w^hich  was  held  valid.  Mattingly  v.  District  of  Columbia,  97  U.  S. 
687,  24  L.  Ed.  1098.  This  rule  is  recognized  in  a  number  of  cases,  among 
which  may  be  mentioned,  Bridgeport  v.  Housatonic  R.  R.,  15  Conn.  496, 497; 
Gibson  v.  Mason,  5  Nev.  297;  Goshen  v.  Stonington,  4  Conn.  209,  224,  226, 
10  Am.  Dec.  128,  180;  Brunswick  v.  Litchfield,  2  Greenl.  (Me.)  33;  Trus- 
tees v.  McCaughy,  2  Ohio  St.  152 ;  McMillen  v.  County  Judge,  6  Iowa,  394. 
In  some  jurisdictions,  however,  the  courts  have  gone  further  in  sanction- 
ing retrospective  legislation.  And  in  a  Georgia  case  a  judgment  was 
vacated  in  order  to  admit  certain  evidence  on  a  subsequent  trial.  Bonner 
v.  Martin,  40  Ga.  501,  505.  See,  also.  Ex  parte  Bibb,  44  Ala.  152 ;  Ex  parte 
Norton  &  Shields,  44  Ala.  185.  In  Forster  v.  Forster,  129  Mass.  566,  Gray, 
J.,  collects  and  classifies  cases  upholding  retrospective  legislation. 

But  where  the  defect  in  the  transaction  sought  to  be  validated  is  some- 
thing more  than  mere  matter  of  form,  the  rule  is  otherwise.  The  propo- 
sition is  illustrated  by  Shonk  v.  Brown,  61  Pa.  St.  320.  In  that  case  a 
married  woman  who  held  property  as  beneficiary  under  a  will  and  under 
express  restraints  upon  her  power  to  convey  sought  to  give  deed  for  the 
same;  an  attempt  was  made  to  validate  this  deed  by  a  subsequent  statute, 
in  defraud  of  the  rights  of  her  heirs  in  whom  the  property  had  vested  upon 
her  death.  This  statute  was  held  inoperative.  Aiid  see  Mitchell  v.  Camp- 
bell, 19  Or.  208,  24  Pac.  468. 

Bemed&irstatutaB,  what  are. 

Remedial  laws  have  been  defined  as  those  "made  from  time  to  time  to 
supply  defects  in  the  existing  law,  whether  arising  from  the  inevitable 
imperfection  of  human  legislation,  from  change  of  circumstances,  from 
mistake,  or  any  other  cause."  Sedgwick's  Stat.  &  Const.  Law  (2d  ed.), 
p.  32.  And  see  Gillespie  v.  Allison,  115  N.  C.  548,  20  S.  E.  629.  Of  such 
a  nature  are  statutes  confirming  proceedings  of  a  court  void  for  want  of 
jurisdiction.  Simmons  v.  Hanover,  23  Pick.  193.  Similarly  laws  altering 
certain  matters  of  procedure  are  remedial.  A  statute  requiring  a  defend- 
ant in  pleading  usury  as  a  defense  against  a  note,  to  tender  payment  of 
the  legal  rate  of  interest  (Baugher  v.  Nelson,  9  Gill,  299,  305,  307,  52  Am. 


69  •  CALDER  v.  BULL.  3  Dall.  386-401 

Dec  698,  699) ;  and  a  statute  saving  a  certain  period  from  the  time  within 
which  an  appeal  from  a  lower  to  a  higher  court  must  he  had,  as  applied 
to  cases  already  commenced.  Davis  v.  Ballard,  1  J.  J.  Marsh.  577,  579. 
Laws  confirming  marriages  illegally  celehrated  are  remedial  (Goshen  v. 
Stonington,  4  Conn.  209,  224,  226,  10  Am.  Dec.  128,  ISO;  Brunswick  v. 
Litchfield,  2  Greenl.  26,  33) ;  so  also  are  laws  validating  conveyances  of 
land  (Watson  v.  Mercer,  8  Pet.  110,  8  L.  Ed.  884) ;  and  void  sales  of  land 
by  an  executor  (Leland  v.  Wilkinson,  10  Pet.  294,  9  L.  Ed.  4S0).  See,  also, 
Aldridge  v.  Tuscumhia  etc.  R.  R.  Co.,  2  Stew.  &  P.  207,  23  Am.  Dec.  812 ; 
Elliott  V.  Mayfield,  4  Ala.  423 ;  Scott  v.  Smart,  1  Mich.  302,  307 ;  Foster  v. 
Essex  Bank,  16  Mass.  245 ;  McMillen  v.  County  Judge,  6  Iowa,  394.  A  ^ 
statute  giving  to  remaindermen  the  right  to  have  partition  of  lands  Held 
in  remainder  vested  before  the  passage  of  the  act  is  remedial  and  valid. 
Gillespie  v.  Allison,  115  N.  C.  548,  20  S.  E.  629. 

Changes  in  rules  of  procedure  applicable  in  the  trial  of  pre-existing  causes. 

The  general  rule  is  that  a  party  must  submit  to  have  his  cause  tried  by 
the  rules  of  procedure  in  force  at  the  time  his  cause  is  being  adjudicated. 
This  is  true  even  in  those  States  in  which  retrospective  laws  are  specifically 
prohibited.  Willard  v.  Harvey,  24  N.  H.  344;  Rich  v.  Flanders,  39  N.  H. 
313,  321,  349,  376,  380,  381,  387.  Unless  such  change  in  procedure  affects  the 
rights  of  either  party  injuriously,  oppressively  or  unjustly*  Simpson  v. 
City  Savings  Bank,  56  N.  H.  469,  22  Am.  Bep.  493. 

Express  prohlbitionB  against. 

The  twenty-third  article  of  the  Bill  of  Rights  of  New  Hampshire  pro- 
vides: "Retrospective  laws  are  highly  injurious,  oppressive,  ajid  unjust. 
No  such  laws,  therefore,  should  be  made,  either  for  the  decision  of  civil 
causes  or  the  punishment  of  offenses."  Woart  v.  Winnick,  3  N.  H.  475, 
476,  14  Am.  Dec.  385,  387 ;  Rich  v.  Flanders,  39  N.  H.^  304 ;  Simpson  v.  City 
Sav.  Bank,  56  N.  H.  466,  469,  22  Am.  Rep.  498.  In  Missouri  the  Constitu- 
tion declares  that  "no  law  retrospective  in  its  operation  can  be  passed.'' 
State  V.  Fry,  4  Mo.  120.  The  Constitution  of  1865  of  (Georgia  proyides, 
ex  post  facto  laws  impairing  the  obligation  of  contracts,  and  retrospective 
laws  injuriously  affecting  any  right  of  the  citizen  are  prohibited.  Aycock 
V.  Martin,  37  Ga.  124.  Section  16  of  the  Declaration  of  Rights  of  Texas 
declares  that :  "No  retrospective  or  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts  shall  be  made."  De  Cordova  v.  City  of  Galveston, 
4  Tex.  473.  The  provision  of  the  Louisiana  Constitution  of  1868,  that  "No 
ex  post  facto  or  retroactive  law,  nor  any  law  impairing  the  obligation  of 
contracts  shall  be  passed,  nor  vested  rights  be  divested,  unless  for  pur-, 
poses  of  public  utility  and  for  adequate  compensation  made,"  has,  how- 
ever, been  held  to  be  simply  a  prohibition  against  "retroactive  laws  which 
impair  the  obligation  of  contracts  or  which  divest  vested  rights,  unless  for 
purposes  of  public  utility  and  for  adequate  compensation  made."  City  of 
Xew  Orleans  v.  New  Orleans  etc.  R.  R.  Co.,  35  La.  Ann.  682.  The  Consti- 
tution of  Colorado  provides  in  section  11  of  the  Bill  of  Rights,  "that  no 
ex  post  facto  law,  nor  law  impairing, the  obligation  of  contracts,  or  retro- 
spective in  its  operation  •  •  .  shall  be  passed."    Denver  etc.  R.  R.  Co.  v. 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  •  70 

Woodward,  4  Colo.  162.  Section  20  of  article  I  of  the  Constitution  of 
Tennessee  is:  "That  no  retrospective  law,  or  law  impairing  the  obligation 
of  contracts  shall  be  made."  Hope  v.  Johnson,  2  Yerg.  123.  The  Constitu- 
tion of  Ohio,  art.  II,  §  28,  thus  provides  against  the  passage  of  retrospec- 
tive laws:  ''The  general  assembly  shall  have  no  power  to  pass  retroactive 
laws,  or  laws  impairing  the  obligation  of  contracts,  provided,  however,  that 
the  general  assembly  may,  by  general  laws,  authorize  courts  to  carry  into 
effect  the  manifest  intention  of  parties  and  officers,  by  curing  omissions, 
defects  and  errors  in  instruments  and  proceedings,  arising  out  of  their  want 
of  conformity  with  the  laws  of  this  State,  and  upon  such  terms  as  shall  be 
just  and  equitable.''     State  v.  Richland  Tp.,  20  Ohio  St.  369. 

JnrlsdlctionB  where  no  express  prohibition  against  retrospective  laws  im- 
pairing vested  rights. 

Aside  from  these  few  States  wherein  retrospective  laws  are  prohibited, 
eo  nomine,  there  are  elsewhere  recognized  certain  limitations  upon  the 
power  of  the  legislature  to  affect  past  acts  and  transactions  by  retroactive 
statute.  The  prohibition  against  laws  impairing  the  obligation  of  con- 
tracts effectually  prohibits  one  very  large  species  of  retroactive  legislation, 
although  the  citations  of  Calder  v.  Bull  do  not  require  a  consideration  of 
them  here.  But  when  legislation  of  this  sort  seeks  to  divest  rights  which 
have  vested  under  the  existing  law,  otherwise  than  by  contract,  it  has  been 
considered  a  grave  question  whether  any  constitutional  limitation  is  or  is 
not  infringed.  The  reprehensible  character  of  such  legislation  has  often 
led  the  courts,  as  has  been  seen,  to  refuse  to  give  a  retrospective  construc- 
tion to  a  statute  unless  its  language  imperatively  so  requires.  As  to  pro- 
visions in*  the  Constitution  of  the  United  States,  it  is  well  settled  that  prior 
to  the  adoption  of  the  Fourteenth  Amendment,-  legislation  of  this  sort  was 
not  thereby  prohibited.  In  Freeland  v.  Williams,  131  U.  S.  405,  420,  33 
L.  Ed.  193,  199,  9  Sup.  Ct.  763,  768,  Justice  Miller  observed  that  "prior  to 
the  Fourteenth  Amendment  the  power  to  provide  such  remedies,  although 
they  may  have  interfered  with  .  .  .  vested  rights,  seems  to  have  been 
fully  conceded."  Other  cases  in  which  such  legislation  has  been  declared 
not  repugnant  to  any  Federal  limitation  are:  Proprietors  etc.  v.  Laboree, 
2  Greenl.  289,  11  Am.  Dec.  90 ;  Burch  v.  Newbury,  10  N.  Y.  390,  391,  394 ; 
Denver  etc.  R.  R.  Co.  v.  Woodward,  4  Colo.  167;  New  Orleans  v.  New 
Orleans  etc.  R.  R.  Co.,  35  La.  Ann.  682 ;  Grim  v.  Weissenberg  School  Dist., 
57  Pa.  St.  435,  98  Am.  Dec.  239 ;  Henderson  etc.  R.  R.  Co.  v.  Dickerson,  17 
B.  Mon.  173,  177,  66  Am.  Dec.  149,  150 ;  Bender  v.  Crawford,  33  Tex.  745, 
751,  7  Am.  Rep.  272;  Coles  v.  Madison  Co.,  Breese,  156,  12  Am.  Dec.  163; 
'Drehman  v.  Stifel,  41  Mo.  204,  97  Am.  Dec.  273.  In  one  case  the  fifth 
amendment  securing  property  against  deprivation  by  Congress  has  been 
relied  upon  in  holding  void  an  act  of  Congress  validating  certain  payments 
to  a  provost  marshal  during  the  war.  Clark  v.  Mitchell,  64  Mo.  574,  re- 
versed in  Mitchell  v.  Clark,  110  U.  S.  633,  28  L.  Ed.  279,  4  Sup.  Ct.  170,  on 
other  grounds.  But  since  the  adoption  of  the  Fourteenth  Amendment  this 
proposition  no  longer  holds  true.  Freeland  v.  Williams,  131  U.  S.  420,  33 
L.  Ed.  199,  9  Sup.  Ct.  768.     This  ataendment  prohibits  a  deprivation  of 


71  C ALDER  V.  BULL.  3  DaU.  386-401 

property  without  due  process  of  law,  a  constitutional  limitation  which  is 
to  be  found  in  the  organic  law  of  all  the  States.  And  this  limitation  has 
been  invoked  against  the  validity  of  retrospective  laws  divesting  vested 
rights;  and  the  weight  of  authority  declares  such  legislation  repugnant 
upon  this  ground.  Proprietors  etc.  v.  Laboree,  2  Greenl.  289,  11  Am.  Dec. 
90;  Andrews  v.  Russell,  7  Blackf.  475;  Caperton  v.  Martin,  4  W.  Va.  150, 
6  Am.  Rep.  279 ;  Dockeiy  v.  McDowell,  40  Ala.  481 ;  Wilder  v.  Lumpkin, 
4  Ga.  214,  215,  218;  Forster  v.  Forster,  129  Mass.  566;  Aldridge  v.  Tus- 
cimibia  etc.  R.  R.,  2  Stew.  &  P.  207,  23  Am.  Dec.  312 ;  Westervelt  v.  Gregg, 
12  N.  Y.  202 ;  Baugher  v.  Nelson,  9  Gill,  305,  307,  52  Am.  Dec.  698,  699 ; 
Davis  V.  Ballard,  1  J.  J.  Marsh.  577,  579.  But  see  Wilson  v.  Hardesty,  1 
Md.  Ch.  66,  68;  Henderson  etc.  R.  R.  v.  Dickinson,  17  B.  Mon.  177,  66  Anu 
Dec.  150 ;  Holman  v.  Bank  of  Norfolk,  12  Ala.  417 ;  Gillespie  v.  Allison,  115 
N.  C.  548,  20  S.  E.  629.  Laws  of  this  sort  have  also  been  declared  to  be 
invalid  by  the  fundamental  principles  of  the  social  compact  (Wilder  v. 
Lumpkin,  4  Ga.  214,  215,  218) ;  or,  because  an  exercise  of  judicial  power, 
as  they  may  sometimes  be  (Forster  v.  Forster,  129  Mass.  566) ;  or,  simply 
ipso  facto,  without  an  attempt  to  assign  coiistitutional  objection.  Brinton 
V.  Seevers,  12  Iowa,  389,  393.  In  some  of  the  courts  views  directly  con- 
flicting have  been  advanced,  and  laws  impairing  vested  rights  declared 
void  at  one  time  and  valid  at  another.  For  instance,  the  Supreme  Court 
of  Alabama  declared  such  legislation  prohibited  by  the  Bill  of  Rights  of 
that  State  (Aldridge  v.  Tuscumbia  etc.  R.  R.  Co.,  2  Stew.  &  P.  199,  207, 
23  Am.  Dec.  312) ;  another  view  of  the  same  court  was  that  retrospective 
laws  "although  they  operate  on  vested  civil  rights,  provided  they  do  not 
impair  the  obligation  of  contracts,"  are  not  prohibited  (Holman  v.  Bank 
of  Norfolk,  12  Ala.  417) ;  but  it  was  declared  that  if  operating  to  divest 
rights  of  a  particular  person  and  not  of  others  of  the  same  class  generally, 
that  such  legislation  is  invalid.  A  later  case  declared  laws  divesting  a  citi- 
zen of  a  lawfully  acquired  right  or  title  to  property  to  be  void  by  the  com- 
mon law.  Dockery  v.  McDowell,  40  Ala.  481.  Compare  Davis  v.  Ballard, 
1  J.  J.  Marsh.  577,  579,  with  Henderson  etc.  R.  R.  Co.  v.  Dickerson,  17 
B.  Mon.  177,  66  Am.  Dec.  149,  150;  Baugher  v.  Nelson,  9  Gill,  305,  307,  52 
Am.  Dec.  698,  699,  with  Wilson  v.  Hardesty,  1  Md.  Ch.  68.  An  early  Maine 
ease  illustrates  this  limitation  upon  the  power  to  enact  retrospective  laws. 
By  a  rule  of  the  common  law  long  recognized  in  that  State,  one  having  an 
adverse  possession^  of  land  for  thirty  years  disseised  the  true  owner  of  the 
entire  tract,  if  his  deed  were  on  record;  but  only  so  much  as  he  had  in 
visible  possession,  if  no  deed  were  recorded.  This  rule  was  changed  by  a  , 
statute  declaring  that  the  same  legal  consequences  against  a  demandant  were 
to  be  attached  to  a  possession  without  deed  recorded,  as  to  a  possession 
under  deed  registered  in  the  public  register,  i.  e.,  the  true  owner  might  be 
disseised  of  the  entire  tract  by  a  visible  possession  without  deed  on  record  of 
even  part  of  it.  The  tenants  in  this  case  had  had  in  possession  for  thirty 
years  one-half  of  the  premises  in  question ;  but  claimed  the  entire  tract  by 
virtue  of  this  statute,  then  recently  passed.  This  act,  by  its  terms  intended 
to  apply  retrospectively,  was  declared  void  in  its  retroactive  effect  because 
operating  to  divest  vested  rights  of  property,  which  was  prohibited  by  the 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  72 

State  Constitution.    Proprietors  etc.  v.  Laboree,  2  Greenl.  275,  288,  11  Am. 
Dec.  89. 

Corporate  taxation  as  affected  by  contract  clause  in  Federal  Constitu- 
tion.   Note,  60  L.  B.  A.  48. 

Vested  right  means  the  power  to  do  certain  actions  or  possess  certain 
things  according  to  the  law  of  the  land. 

Approved  in  Lohrstrofer  v.  Lohrstrofer,  140  Mich.  560,  104  N.  W.  146, 
holding  void  Comp.  Laws  1897,  §  652,  amending  law  requiring  pajjment  of 
register's  fees  on  appeal,  so  as  to  provide  for  reinstatement  of  appeals  dis- 
missed for  nonpayment,  in  so  far  as  applicable  to  appeals  dismissed  prior 
to  passage  of  act;  Gladner  v.  Sydnor,  172  Mo.  326,  328,  95  Am.  St.  Rep. 
520,  524,  72  S.  W.  556,  55/,  holding  homestead  act  of  1895  void ;  Graham 
V.  Great  Falls  etc.  Co.,  30  Mont.  400,  76  Pac.  810,  preferential  interest  given 
successful  contestant  under  21  Stat.  140,  not  vested  in  property  right.  In 
other  cases  the  syllabus  point  has  been  cited  as  follows:  De  Cordova  v, 
Galveston,  4  Tex.  480;  Hamilton  v.  Flynn,  21  Tex.  716;  Grigsby  v.  Peak, 
57  Tex.  147;  Mellinger  v.  City  of  Houston,  68  Tex.  48,  3  S.  W.  249;  Beebe 
V.  State,  6  Ind.  501,  524,  530 ;  White  v.  Commissioners,  13  Or.  322,  54  Am. 
Rep.  844,  10  Pac.  485;  Munn  v.  People,  69  111.  95.  "When  vested  rights 
are  spoken  of  by  the  courts  as  being  guarded  against  legislative  inter- 
ference," said  Martin,  J.,  in  Baugher  v.  Nelson,  9  Gill,  299,  "they  mean 
those  rights  to  which  a  party  may  adhere,  and  upon  which  he  may  insist, 
without  violating  any  principles  of  sound  morality.  ...  In  the  nature  of 
things  there  can  be  no  vested  right  to  violate  a  moral  duty,  or  to  resist 
the  performance  of  a  moral  obligation."  Or,  as  it  is  elsewhere  stated, 
"Courts  do  not  regard  rights  as  vested  contrary  to  the  justice  and  equity 
of  the  case."  State  v.  Newark,  27  N.  J.  L.  197,  See,  also,  Foster  v.  Essex 
Bank,  16  Mass.  245,  273;  Freeland  v.  Williams,  131  U.  S.  420,  S3  L.  Ed. 
199.  This  principle  is  obviously  akin  to  the  rule  which  declares  the  true 
purpose  of  retrospective  laws  to  be  remedial  and  beneficial;  and  illustra- 
tions there  given  of  the  operation  of  that  rule  apply  also  in  this.  Further 
illustrations  are:  A  statute,  removing  a  disability  which  prevented  a  party 
defeated  in  the  lower  court  from  appealing  to  the  higher  (Henderson  etc. 
R.  R.  Co.  V.  Dickerson,  17  B.  Mon.  177,  66  Am.  Dec.  149,  150) ;  a  statute 
granting  a  rehearing  in  the  matter  of  the  probate  of  a  will  (Calder  v.  Bull, 
3  Dall.  386),  although  Justice  Chase  held  that  the  statute  affected  a  right 
to  recover  property  merely,  and  not  a  vested  right.  Upon  this  principle 
also  may  be  justified  retrospective  statutes  affirming  jurisdiction  of  certain 
cases  pending  on  appeal,  and  as  to  which  there  was  vested  in  the  defend- 
ants a  valid  defense  against  such  proceedings.  Scott  v.  Smart,  1  Mich.  302, 
307 ;  Simmons  v.  Hanover,  23  Pick.  193.  Although  the  rule  is  otherwise  if 
the  irregularity  has  operated  to  the  substantial  injury  of  either  party  in 
respect  to  his  constitutional  right  to  a  fair  trial.  Lane  v.  Nelson,  79  Pa. 
St.  410. 

Vested  right  in  defense  of  limitations.    Note,  45  L.  B.  A.  614. 


73  CALDER  v.  BULL.  3  Dall.  386-401 

lAwn  saving  time  from  tbe  ttatate  of  Umltatloiui  are  somotinieB  proper 
and  necessazy. 

Such  laws  when  retrospective  have  been  held  not  to  divest  vested  rights. 
Caperton  v.  Martin,  4  W.  Va.  160,  6  Am.  Rep.  279 ;  Bender  v.  Crawford,  33 
Tex.  751,  7  Am.  Rep.  272 ;  Davis  v.  Ballard,  1  J.  J.  Marsh.  577,  579.  But 
it  has  been  declared  that  retrospective  laws,  extc^nding  the  time  of  the  stat- 
ute of  limitations  and  reviving  a  right  of  action  previously  lapsed,  are  pro- 
hibited as  divesting  vested  rights,  although  upon  this  point  the  authorities 
are  not  fully  agreed.  Davis  v.  Minor,  1  How.  (Miss.)  193,  28  Am.  Dec. 
831 ;  Woart  v.  Winnick,  3  N.  H.  481,  14  Am.  Dec.  391 ;  Briggs  v.  Hubbard, 
19  Vt.  86;  Conch  v.  McKee,  6  Ark.  495;  Wheeler's  Appeal,  45  Conn.  318, 
320.  But  if  by  the  operation  of  the  existing  statute  of  limitations,  no  right 
of  defense  has  accrued,  it  is  competent  for  the  legislature  to  shorten  or 
extend  the  time  within  which  an  action  may  be  brought,  provided  it  be  not 
made  so  short  that  a  party  is  practically  deprived  of  his  right  of  action. 
Griffin  v.  McKenzie,  7  Ga.  166,  50  Am.  Dec.  391. 

Courta  may  declare  a  statute  void,  but  it  is  presumed  conatltatioiial  and 
will  be  declared  void  only  in  very  clear  caae. 

Cited  to  point  that  courts  have  power  to  adjudge  nneonstitutionality  of 
statute,  in  the  following  cases:  Hnbley  v.  White,  2  Yeates,  133,  147;  Santo 
V.  State,  2  Iowa,  208,  63  ^jsl  Dec.  506;  State  v.  County  Judge,  2  Iowa,  283; 
Stewart  v.  Board  of  Supervisors,  30  Iowa,  15,  17,  1  Am.  Rep.  242,  244; 
Beall  V.  Beall,  8  Ga.  218 ;  Bank  of  St.  Mary  v.  State,  12  Ga.  498 ;  Stockton 
V.  Montgomery,  Dall.  (Tex.)  485;  Lewis  v.  Woodfold,  2  Baxt.  47;  Lonas  v. 
State,  3  Heisk.  30L  Cited  to  point  that  repugnancy  of  statute  must  bo 
dear :  Hubley  v.  White,  2  Yeates,  133, 147 ;  State  v.  Fry,  4  Mo.  135 ;  Burton 
V.  State,  3  Gill  (Md.),  1,  6;  Stow  v.  Parks,  2  Finn.  (Wis.)  129  (1  Chand. 
60,  68) ;  Santo  v.  State,  2  Iowa,  208,  63  Am.  Dec.  506;  State  v.  County 
Judge,  2  Iowa,  283;  Stewart  v.  Board  of  Supervisors,  30  Iowa,  15,  17, 
1  Am.  Rep.  248,  244;  Carey  v.  Giles,  9  Ga.  259;  Sacerdotte  v.  Duralde,  1 
La.  (O.  S.)  482;  Simpson  v.  City  Sav.  Bank,  56  N.  H.  466,  469,  22  Am.  Rep. 
408;  Mayor  etc.  v.  State,  15  Md.  389;  Maxent  v.  Maxent,  1  La.  (O.  S.)  453; 
United  States  v.  Williams,  28  Fed.  Cas.  617. 

Approved  in  Ladd  v.  Holmes,  40  Or.  182,  91  Am.  St.  Rep.  470,  66  Pac. 
720,  construing  primary  election  law  of  1901 ;  dissenting  opinion  in  Atchison 
etc.  E.  Co.  V.  Matthews,  174  U.  S.  114,  43  L.  Ed.  916,  19  Sup.  Ct.  609,  613, 
majority  upholding  Kansas  act  allowing  recovery  of  attorneys'  fees  in 
actions  against  railroads  for  damages  by  fire ;  dissenting  opinion  in  Evans- 
Snider-Buel  Co.  v.  MTadden,  105  Fed.  304,  305,  68  L.  R.  A.  900,  majority 
upholding  29  Stat.  510,  c.  136,  relative  to  validation  of  mortgages  in  Indian 
Territory. 

Statutes  infringing  fundamental  principles  of  social  compact  are  void 
altiiou^  not  repugnant  to  any  specific  constitutional  limitations. 

Reaffirmed  in  the  following  cases:  Grifiin  v.  Mixon,  38  Miss.  434;  People 
V.  Collins,  3  Mich.  395 ;  Wilder  v.  Chicago  etc.  R.  R.  Co.,  70  Mich.  385,  38 
N.  W.  290 ;  State  v.  Flanders,  24  La.  Ann.  71 ;  Wilder  v.  Lumpkin,  4  Ga, 
214,  215,  218;  Goshen  v.  Stonington,  4  Conn.  209,  224,  226,  10  Am.  Dec 


3  DaU.  386-401  NOTES  ON  U.  S.  REPORTS.  74 

128,  130;  In  re  Dorsey,  7  Port.  375,  417;  McVeigh  v.  United  States,  11 
Wall.  267,  20  L.  Ed.  81;  Legal  Tender  Cases,  12  Wall.  582,  670,  20  L.  Ed. 
322,  350 ;  Osborn  v.  Nicholson,  13  Wall.  662,  20  L.  Ed.  695 ;  Gunn  v.  Barry, 
15  Wall.  623,  21  L.  Ed.  215;  Sinking  Fund  Cases,  99  U.  S.  765,  25  L.  Ed. 
518;  Legal  Tender  Case,  110  U.  S.  469,  28  L.  Ed.  221.  4  Sup.  Ct.  141; 
City  of  Janesville  v.  Carpenter,  77  Wis.  303,  20  Am.  St.  Rep.  184,  46  N.  W. 
132;  Prince  William  School  Board  v.  Stuart,  80  Va.  77;  Peerce  v.  Carska- 
don,  4  W.  Va.  248,  6  Am.  Rep.  292;  Gage  v.  Neblett,  57  Tex.  375;  Kelly 
V.  Pittsburgh,  85  Pa.  St.  182,  27  Am.  Rep.  639;  Clark  v.  Mitchell,  64  Mo. 
574,  582;  Hepburn's  Case,  3  Bland  Ch.  96;  Durkee  v.  City  of  Jantsville, 
28  Wis.  468,  9  Am.  Rep.  503;  Spring  Valley  W.  W.  v.  Bartlett,  16  Fed. 
634,  635,  8  Sawy.  580;  Smith  v.  Lake  etc.  Ry.,  72  N.  W.  336.  And  cited 
in  the  following  cases,  although  not  altogether  approved ;  State  v.  Allmond, 
2  Houst.  (Del.)  639;  Holt  v.  Moore,  4  Ala.  394,  396;  People  v.  Gallagher, 

4  Mich.  248;  Simmons  v*  Hanover,  23  Pick.  193;  Baugher  v.  Nelson,  9 
Gill,  305,  307,  52  Am.  Dec.  698,  699 ;  Commonwealth  vl  McCloskey,  2  Rawle, 
373 ;  Wynehamer  v.  People,  13  N.  Y.  390,  431 ;  Ingram  v.  Colgan,  106  Cal. 
123,  46  Am.  St.  Rep.  229,  38  Pac.  316.  Justice  Iredell's  emphatic  denial  of 
the  existence  of  any  such  power  is  cited  with  approval  in  the  following 
cases:  People  v.  Gallagher,  4  Mich.  248;  Maynard  v.  Board  of  Canvassers, 
84  Mich.  256,  47  N.  W.  764;  Campbell's  Case,  2  Bland  Ch.  209,  232,  237, 
20  Am.  Dec.  873,  878;  Ex  parte  Law,  35  Ga.  285,  297,  15  Fed.  Cas.  8,  12; 
Macon  etc.  R.  R.  Co.  v.  Little,  45  Ga.  388 ;  State  v.  Allmond,  2  Houst.  639 ; 
Bridgeport  v.  Housatonic  R.  R.  Co.,  16  Conn.  496,  497;  Billings  v.  Hall, 
7  Cal.  23;  In  re  Dorsey,  7  Port.  375,  417;  Sharpless  v.  Mayor,  21  Pa.  St. 
163,  59  Am.  Dec.  767;  Wynehamer  v.  People,  13  N.  Y.  378,  390,  431;  Bell 
V.  Gough,  23  N.  J.  L.  624,  695;  Williams  v.  Camack,  27  Miss.  219,  61 
Am.  Dec.  514;  Gibson  v.  Mason,  5  Nev.  297;  Blair  v.  Ridgely,  41  Mo.  171, 
97  Am.  Dec.  252;  Dorman  v.  State,  34  Ala.  232,  233;  Albee  v.  May,  2  Paine, 
79,  Fed.  Cas.  134 ;  Loan  Assn.  v.  Topeka,  20  Wall.  669,  22  L.  Ed.  468.  And 
quoted,  although  not  altogether  approved,  in  Simmons  v.  Hanover,  23  Pick. 
193. 

Approved  in  Eberhart  v.  United  States,  204  Fed.  892,  123  C.  C.  A.  180, 
holding  void  Federal  statute  extending  time  for  bringing  suit  against 
surety  of  contractor  with  government  beyond  time  stipulated  in  bond; 
Stephens  v.  Cherokee  Nation,  174  U.  S.  478,  48  L.  Ed.  1053,  19  Sup.  Ct. 
722,  upholding  act  of  July  1,  1898,  giving  Supreme  Court  jurisdiction  of 
appeals  from  Federal  court  in  Indian  Territory ;  National  Union  v.  SheiTy, 
180  Ala.  633,  61  South.  946,  but  holding  benefit  certificate  issued  when  law 
provided  that  misrepresentations  would  not  avoid  policy,  unless  fraudulent 
or  material,  unaffected  by  subsequent  change  in  law ;  Town  of  New  Decatur 
V.  American  Tel.  &  Tel.  Co.,  176  Ala.  508,  Ann.  Cas.  1915A,  875,  58  vSouth. 
618,  holding  void  ordinance  depriving  telephone  company  of  franchise, 
though  State  Constitution  provided  that  franchises  should  be  revocable; 
Miles  Planing  Co.  v.  Carlisle,  6  App.  D.  C.  148,  149,  holding  void  provisions 
of  revenue  act  granting  bounty  to  sugar  producers;  Castner  v.  City  of 
Minneapolis,  92  Minn.  86,  99  N.  W.  361,  holding  void  reimbursement  by 
city  council  of  defeated  candidate  for  office  for  expenses  of  contest;  State 
V.  Barrett,  138  N.  C.  640,  50  S.  E.  509,  upholding  Laws  1903,  p.  749,  c.  434, 


75  CALDER  v.  BULL.  3  Dall.  386-401 

making  possession  of  more  than  quart  of  liquor  prima  facie  evidence  of 
keeping  it  for  sale ;  Ex  parte  Anderson,  46  Tex.  Cr.  379,  380,  390,  392,  81 
S.  W.  975,  976,  982,  983,  city  court  has  no  jurisdiction  to  try  accused  for 
violation  of  state  penal- statute;  United  States  v.  United  States  Fidelity  & 
Guaranty  Co.,  80  Vt.  96,  66  Atl.  814,  act  permitting  suit  in  Federal  court 
on  bond  of  contractor  with  govemmeni  held  not  retrospective;  dissenting 
opinion  in  McLendon  v.  State,  179  Ala.  79,  Ann.  Gas.  19150,  691,  60  South. 
400,  majority  upholding  law  imposing  occupation  tax  but  exempting  ex- 
Confederate  soldiers  therefrom ;  dissenting  opinion  in  Whaley  v.  State,  168 
Ala.  169,  SO  L.  R.  A.  (N.  S.)  499,  52  South.  946,  majority  upholding  statute 
authorizing  street  railroad  companies  to  make  reasonable  rules  concerning 
transfers;  dissenting  opinion  in  Crane  v.  Waldron,  133  Mich.  84,  94  N.  W. 
597,  majority  upholding  act  No.  99  of  1897,  relating  to  proof  in  suits  in  aid 
of  execution;  dissenting  opinion  in  State  v.  Chicagoi  etc.  R.  Co.,  239  Mo. 
332,  143  S.  W.  827,  majority  upholding  law  which  required  railroad  com- 
panies to  operate  at  least  one  passenger  train  each  day  including  Sunday; 
dissenting  opinion  in  Battery  Park  Bank  v.  Madison  County  Commrs.,  135 
N.  C.  244,  47  S.  E.  1019,  majority  holding  Laws  1903,  p.  480,  c.  281,  relat- 
ing  to  refunding  bonds  of  Madison  county  is  not  mandatory;  dissenting 
opinion  in  Ex  parte  Townsend,  64  Tex.  Cr.  395,  144  S.  W.  652,  majority 
upholding  law  imposing  prohibition  tax  upon  sale  of  nonintoxicating  malt 
liquors. 

It  is  asserted  that  in  no  instance  have  those  courts  afiEbrming  the  existence 
of  the  right  to  declare  a  statute  void  because  violating  the  first  principles 
of  the  social  compact  ever  based  such  avoidance  upon  this  ground  and  no 
other.  State  v.  Allmond,  2  Houst.  639.  But  in  Wilder  v.  Railway  Co.. 
70  Mich.  385,  38  N.  W.  290,  a  statute  permitting  a  successful  plaintiff  in 
an  action  against  a  railway  company  for  killing  cattle  to  add  twenty-five 
dollars  attorney's  fee  as  x>ft^  of  costs  was  held  void  because  ''repugnant 
to  oar  form  of  government,  and  out  of  harmony  with  the  genius  of  our 
free  institutions."  See  Denver  etc.  Ry.  v.  Outcalt,  2  Colo.  App.  403,  407, 
31  Pac.  181,  to  the  same  effect.  A  similar  holding,  however,  in  South  etc. 
R.  R.  Co.  V.  Morris,  65  Ala.  193,  was  based  upon  repugnancy  to  the  provi- 
sion of  the  national  Constitution  which  secures  to  all  citizens  the  e<iual 
protection  of  the  laws.  See  contra,  Wortman  v.  Kleinschmidt,  12  Mont. 
331,  352,  30  Pac.  285,  293.  On  the  other  hand,  courts  have  declined  to 
declare  a  law  void  on  this  ground  (State  v.  Flanders,  24  La.  Ann.  71; 
Williams  v.  Camack,  27  Miss.  209,  219,  61  Am.  Dec.  514) ;  and  when  holdins; 
void  a  statute  allied  to  be  in  conflict  with  fundamental  principles,  have 
chosen  rather  to  base  their  disaffirmance  upon  a  liberal  construction  of  some 
specific  constitutional  restriction.  Gunn  v.  Barry,  15  Wall.  623,  21  K  Ed. 
215;  Proprietors  etc.  v.  Laboree,  2  Greenl.  289,  11  Am.  Dec.  90;  Forster  v. 
Forster,  129  Mass.  566 ;  Commonwealth  v.  McCloskey,  2  Rawle,  373. 

Distinguished  in  Shevlin-Carpenter  Co.  v.  Minnesota,  218  U.  S.  68,  54 
L.  Ed.  935,  30  Sup.  Ct.  663,  upholding  statute  penalizing  casual  a^d  invol- 
untary trespass  in  cutting  timber  upon  state  lands. 

The  national  Constitution  does  not  prohibit  exercise  of  Judicial  functions 
liy  State  legislatures,  and  a  Connecticut  statute  granting  a  rehearing  in  tlie 


3  Dall.  386-401  NOTES  ON  U.  S.  REPORTS.  76 

matter  of  a  iMrobata  decree  iofringes  no  Federal  Umitation.  It  ieeow  tl&at 
under  the  CaDBtitation  of  that  State  the  legislature  haa  always  had  Judicial 
poweiB. 

The  citations  show  that  in  a  number  of  cases  it  has  been  sought  to  jus- 
tify legislation  involving  the  exercise  of  judicial  powers  upon  the  authority 
of  the  principal  case;  but  the  courts,  in  determining  its  value  as  an  au- 
thority, have  generally  not  failed  to  recognize  the  anomalous  nature  of  the 
power  which  the  Connecticut  assembly  exercised  at  that  time.  Merrill  v. 
Sherburne,  1  N.  H.  209,  213,  8  Am.  Dec.  55,  61,  64 ;  Dash  v.  Van  Kleeck,  7 
Johns.  499,  5  Am.  Dec.  305 ;  Bates  v.  Kimball,  2  D.  Chip.  86 ;  Lewis  v.  Webb, 
3  Me.  326,  334 ;  State  v.  Huf  ty,  11  La.  Ann.  316,  318 ;  Griffin  v.  Cunningham, 
20  Gratt.  54 ;  Bradford  v.  Shine,  13  Fla.  393,  ^,  7  Am.  Rep.  248 ;  Trustees 
etc.  V.  Bailey,  10  Fla.  249,  254;  Starr  v.  Pease,  8  Conn.  547;  Higbee  v. 
Higbee,  4  Utah,  30,  5  Pac.  696 ;  Clark  v.  Mitchell,  64  Mo.  574,  582 ;  Magill 
v.. Lyman,  6  Conn.  67;  Burch  v.  Newbury,  10  N.  Y.  390,  391,  394,  60  Am.  St. 
Rep.  6S4.  In  other  cases,  however,  this  distinction  is  not  so  clearly  recog- 
nized. Rhinehart  v.  Schuyler,  2  Gilm.  510 ;  Edwards  v.  Pope,  3  Scam.  473 ; 
Bonner  v.  Martin,  40  Ga.  505;  Chattaroi  Ry.  Co.  v.  Kinner,  81  Ky.  224. 
These  are  fol*  the  most  part  dases  of  statutes  of  a  judicial  character,  which 
were  equitable  knd  remedial  in  their  operation;  as,  a  statute  permitting 
the  introduction  of  evidence  of  tender  of  payment  in  an  action  on  a  note, 
and  ordering  certain  prior  judgments  to  be  vacated.  Bonner  v.  Martin, 
40  Ga.  505,  To  a  similar  effect  is  Bradee  v.  Brownfield,  2  Watts.  &  S.  285. 
Statutes  ordering  a  new  trial  in  certain  cases  where  there  existed  a  good 
and  meritorious  defense  also  came  under  this  category.  Ex  parte  Bibb,  44 
Ala.  152 ;  Ex  parte  Norton,  44  Ala.  185. 

The  general  rule  under  the  various  Constitutions,  undoubtedly  is,  that 
a  legislature  cannot  enact  laws  that  are  in  the  nature  of  an  exercise  of 
judicial  functions.  A  statute  ordering  a  rehearing  or  permitting  an  appeal 
in  other  than  the  ordinary  manner  is  void  on  this  ground.  Bates  v.  Kim- 
ball, 2  D.  Chip.  86;  Griffin  v.  Cunningham,  20  Gratt.  54;  Trustees  etc.  v. 
Bailey,  10  Fla.  249,  254 ;  Lewis  v.  Webb,  3  Me.  334.  See,  also,  Burch  v. 
Newbury,  10  N.  Y.  374,  390,  391,  394.  Similarly  an  act,  confirming  the 
title  of  land  in  B,  which  operates  to  divest  A's  lawful  title  (Robinson  v. 
Barfield,  2  Murph.  (N.  C.)  422) ;  although  such  an  act  is  generally  avoided 
on  other  grounds.  Brinton  v.  Seevers,  12  Iowa,  389.  Legislative  decrees 
of  divorce  have  also  been  declared  void  as  an  exercise  of  judicial  power. 
Higbee  v.  Higbee,  4  Utah,  30,  5  Pac.  696;  State  v.  Fry,  4  Mo.  135,  144,  177. 

The  syllabus  point  has  also  been  approved  in  the  following  recent  cases : 
Wallace  v.  Adams,  204  U.  S.  422,  51  L.  Ed.  651,  27  Sup.  Ct.  363,  upholding 
Federal  statute  empowering  Choctaw  and  Chickasaw  citizenship  court  to 
review  final  judgments  in  citizenship  eases ;  Ex  parte  Anderson,  46  Tex.  Cr. 
399,  81  S.  W.  987,  city  court  has  no  jurisdiction  to  try  accused  for  violation 
of  state  statute ;  State  v,  Kreutzberg,  114  Wis.  539,  91  Am.  St.  Rep.  941,  90 
N.  W.  1102,  holding  void  Rev.  Stats.  1898,  §  4466b,  as  amended  by  Laws 
1899,  c.  332,  prohibiting  employers  from  discharging  nonunion  workmen. 

LeglBaatiixe  may  take  private  property  for  pablic  uae  upon  making  coio- 
pensatlon. 


77  CALDER  v.  BULL.  3  DalL  386-401 

Reaffirmed  in  Robinson  v.  Barfield,  2  Murph.  (N.  C.)  390,  422;  Den  ex 
dem.  Berdam  v.  Van  Riper,  16  N.  J.  L.  10,  14 ;  Seott  v.  Smart,  1  Mich.  302, 
307;  New  Orleans  etc.  R.  R.  Co.  v.  New  Orleans,  26  La.  Ann.  521;  Beard 
V.  Smith,  6  T.  B.  Mon.  499,  500. 

State  legislatures  retain  powers  delegated  to  them  and  not  taken  away  by 
Federal  Oonstitntion.  Federal  government  possesses  only  powers  expressly 
delegated. 

Cited  in  People  v.  Naglee,  1  Cal.  235,  52  Am.  Dec.  315,  holding  valid 
State  law  imposing  license  fee  on  foreign  miners;  Hawkins  v.  Filkins,  24 
Ark.  300,  discussing  the  limitations  of  Federal  power;  Passenger  Cases,  7 
How,  555,  12  L.  Ed.  816,  reviewing  authorities  upon  State  and  Federal 
powers;  United  States  v.  New  Bedford  Br.,  1  Wood.  &  M.  427,  Fed.  Cas. 
15,867,  in  general  review  of  cases  on  the  subject;  Dunne  v.  People,  94  111. 
129,  84  Am.  Rep.  219,  examining  the  cases  on  this  subject  in  upholding 
State  militia  act;  Harlan  v.  People,  1  Doug.  (Mich.)  210,  applying  the 
general  principle  in  holding  that  States  have  concurrent  power  with  the 
Federal  government  in  punishing  counterfeiting;  Campbell's  Case,  2  Bland 
Ch.  232,  237,  20  Am.  Dec  373,  378,  discussing  the  doctrine  generally. 

Implied  restrictions  on  power  of  legislatures.    Note,  17  L.  B.  A.  840. 

Snpreme  Court  has  no  authority  to  adjudge  repugnancy  of  State  statute  to 
State  Constltation.  # 

Cited  to  this  point  in  dissenting  opinions  in  State  v.  Hufty,  11  La.  Ann. 
316,  arguing  that  act  removing  public  officer  was  invalid;  and  in  Williams 
V.  Bank  of  Michigan,  7  Wend.  553,  holding  foreign  corporation  was  to  be 
deemed  legally  constituted. 

Legislative    power    to    annex   territory    to    municipalities.    Note,  27 
L.  B.  A.  746. 

Federal  Constitution  does  not  affect  Juridical  acts. 

Approved  in  Frank  v.  Mangum,  237  U.  S.  344,  69  L.  Ed.  987,  35  Sup.  Ct. 
582,  refusing  to  review  State  decision  that  certain  objection  should  have 
been  raised  on  motion  for  new  trial;  Ross  v.  Oregon,  227  U.  S.  161,  Ann. 
Cas.  1914C,  224,  57  L.  Ed.  463,  33  Sup.  Ct.  220,  upholding  judgment  of 
State  court  which  construed  constitutional  amendment  requiring  prosecu- 
tion by  indictment  as  prospective  only. 

Miscellaneous.  Cited  in  Weems  v.  United  States,  217  U.  S.  373,  19 
Ann.  Cas.  705,  54  L.  Ed.  801,  30  Sup.  Ct.  544,  treatment  which  doctrine  of 
principal  case  has  received  exemplifies  fact  that  constitutional  construction 
is  growing  thing;  Moulton  v.  Scully,  111  Me.  471,  89  Atl.  963,  to  point 
that  when  statute  is  clear  on  its  face  there  is  no  room  for  construction; 
United  States  v.  Arredondo,  6  Pet.  715,  8  L.  Ed.  556,  to  point  that  custom 
and  usage  are  sources  of  some  of  our  law;  Jackson  v.  Magnolia,  20  How. 
334,  15  L.  Ed.  926,  upon  question  of  admiralty  jurisdiction;  State  v. 
Wright43on,  56  N.  J.  L.  209,  28  Atl.  65 ,  United  States  v.  Gilbert,  2  Sumn. 
101,  Fed.  Cas.  15,204,  and  United  States  v.  Harris,  1  Abb.  (U.  S.)  115, 
Fed.  Cas.  15,312,  as  illustration  of  a  legal  term  so  concise  that  its  meaning 


3  Dall.  401-408  NOTES  ON  U.  S.  REPORTS.  78 

can  only  be  determined  from  usage;  State  v.  Dews,  Charlt.  (Ga.)  429, 
to  point  that  the  contract  obligation  clause  applies  only  td  private  eon- 
tracts;  Cohen  v.  Wright,  22  Cal.  319,  to  the  point  that  mere  statutory 
privileges  are  liable  to  divestiture  by  the  legislature;  Magill  v.  Lyman, 
6  Conn.  67,  remarking  that  decision  in  Calder  v.  Bull^was  not  part  of  the 
probate  record  of  Connecticut;  Hicks  v.  Hotchkiss,  7  Johns.  Ch.  310, 
11  Am.  Dec.  480,  arguing  in  support  of  bankrupt  law;  North  etc.  Min.  Co. 
V.  United  States,  8^  Fed.  679,  not  in  point;  People  v.  Turner,  74  N.  W.  619, 
on  waiver  of  objection  in  criminal  case;  United  States  v.  William,  28  Fed. 
Cas.  618,  as  to  author  of  Federalist;  Magill  v.  Brown,  16  Fed.  Cas.  420,  to 
point  that  legislative  usage  is  evidence  of  supreme  law,  where  unwritten. 

3  DaU.  401-408,  II..  Ed.  655,  WILSON  ▼.  DANIEL. 

Writ  of  error  lies,  although  judgment  is  imperfect  and  informal,  where  it 
is  such  that  execution  could  issue  on  it. 

Cited  in  Brewer  v.  Ware,  18  N.  J.  L.  371,  holding  the  writ  will  not  lie 
to  bring  up  proceedings  on  trial  of  feigned  issue;  Harris  v.  Hopkson,  5 
Tex.  533,  where  Supreme  Court  received  affidavits  to  prove  appeal  bond 
not  filed  within  time,  but  fraudulently  antedated. 

Right   to    appeal    from   void   judgment,  decree,  or    order.    Note,  33 
L.  B.  A.  734. 

Jurisdiction  on  appeal,  based  upon  amount  tn  dispute,  is  determined  by 
amount  demanded  by  plalntiif. 

Approved  in  Hampton  Stave  Co.  v.  Gardner,  154  Fed.  806,  83  C.  C.  A. 
521,  Woodling  v.  Romero,  16  N.  M.  57,  58,  113  Pac.  622,  623,  Ray  v.  South- 
em  Ry.  Co.,  77  S.  C.  107,  57  S.  E.  637,  and  Battle  v.  Atkinson,  115  Fed. 
385,  all  following  rule;  Lowenthal  v.  Georgia  Coast  &  P.  R.  Co.,  233  Fed. 
1015,  upholding  jurisdiction  over  suit  by  holder  of  bonds  to  value  of  six 
thousand  dollars  to  foreclose  mortgage  to  secure  whole  issue,  though  unpaid 
interest  installment  on  complainant's  bonds  did  not  amount  to  three  thou- 
sand dollars;  Maryland  Casualty  Co.  v.  Price,  231  Fed.  403,  and  Ohman  v. 
City  of  New  York,  168  Fed.  960,  both  holding  where  allegations  showed 
only  nominal  damage,  demand  for  larger  sum  did  not  give  jurisdiction; 
Thoinpson  v.  Southern  R.  Co.,  116  Fed.  891,  refusing  to  remand  for  want 
of  jurisdiction  though  court  certain  that  demand  was  below  jurisdictional 
amount;  Interstate  Bldg.  etc.  Loan  Assn.  v.  Edgefield  Hotel,  109  Fed.  693, 
holding  valid  defense  apparent  on  face  of  bill  reducing  amount  of  recovery 
does  not  affect  jurisdiction;  Kunkel  v.  Brown,  99  Fed.  595,  holding  amount 
in  dispute  unaffected  by  honest  mistake;  Ung  Lung  Chung  v.  Holmes,  98 
Fed.  325,  holding  jurisdiction  not  ousted  by  failure  of  evidence  of  amount 
in  dispute;  dissenting  opinion  in  Levinski  v.  Middlesex  Bank.  Co.,  92  Fed. 
464,  majority  holding  demurrer  to  part  of  items  does  not  affect  Federal 
jurisdiction  on  removal;  Mills  v.  Couchman,  4  J.  J.  Marsh.  242,  holding 
that  in  actions  ex  contractu  the  amount  in  controversy  is  the  debt  or  dam- 
ages sued  for;  Hayward  v.  Nordberg  Mfg.  Co.,  85  Fed.  6,  holding  juris- 
diction cannot  be  defeated  under  this  act  if  the  amount  declared  might  be 


79  WILSON  V.  DANIEL.  3  Dall.  $01-408 

recovered,  unless  the  amount  stated  was  colorable;  Odell  v.  Culbert,  9 
Watts  &  S.  68,  42  Am.  Dec.  319,  holding  that  if  the  sum  demanded  is  re- 
duced below  the  required  amount  by  setoffs,  the  court  nevertheless  has 
jurisdiction;  Swigley  v.  Dickson,  2  Tex.  195,  where  suit  was  brought  on  » 
note,  the  amount  due  on  which  had  been  reduced  by  payment  to  less  thai/ 
one  hundred  dollars;  Kline  v.  Wood,  9  Serg.  &  R.  299,  holding  that  the 
District  Court  has  no  jurisdiction  where  the  value  put  in  demand  by  the 
plaintiff's  declaration  is  under  one  hundred  dollars;  Sweeney,  Ex  parte,  126 
Ind.  590,  27  N.  E.  129,  where  the  question  was  discussed  as  to  the  effect 
of  the  amount  of  the  recovery  on  the  jurisdiction;  Murphy  v.  Howard, 
Hempst.  206,  Fed.  Cas.  9949a,  an  action  of  assumpsit  for  the  value  «)|  a 
keel  boat ;  Vance  v.  W.  A.  Vandercook  Co.,  170  U.  S.  472,  42  L.  Ed.  118, 
18  Sup.  Ct.  647,  where,  from  the  case  stated,  a  judgment  could  not  be  ren- 
dered for  a  sum  sufficient  to  give  jurisdiction,  although  the  damages  were 
laid  at  a  larger  sum;  Spear  v.  Place,  11  How.  526,  13  L.  Ed.  798,  where 
a  libel  was  filed  against  a  schooner,  her  tackle  and  cargo,  on  a  claim 
for  salvage;  O'Reilly  v.  Murdock,  1  Gill,  39,  holding  that,  in  eases  of  tort, 
sounding  in  damages,  the  amount  put  in  demand  is  the  test  of  jurisdiction ; 
Herbert  v.  Rainey,  54  Fed.  251,  a  bill  in  equity  to  enjoin  execution  and 
maintenance  of  a  nuisance;  Hoit  v.  Malony,  2  N.  H.  324,  an  action  of 
trover  for  household  goods ;  Hancock  v.  Barton,  1  Serg.  &  R.  269,  an  action 
of  trespass  vi  et  armis  for  an  assault  and  battery;  Singleton  v.  Madison, 

1  Bibb  (Ky.),  345,  and  Strong  v.  Daniels,  3  Mich.  472,  both  actions  of 
trespass  on  the  case;  Burr  v.  Bayne,  10  Watts.  300,  an  action  of  trespass 
de  bonis  asportatis ;  Norton  v.  Hart,  1  Ohio,  155,  holding  that  the  plaintiff, 
in  actions  for  trespass  upon  real  property,  where«»the  damages  laid  exceed 
one  hundred  dollars,  is  entitled  to  costs ;  Barry  ▼.  Edmunds,  116  U.  S.  560, 
29  L.  Ed.  782,  6  Sup.  Ct.  50p,  where  exemplary  damages  beyond  the  sum 
necessary  to  give  jurisdiction  were  claimed  in  an  action  for  malicious 
trespass. 

Denied  in  Gordon  v.  Ogden,  3  Pet.  34,  7  L.  Ed.  593,  holding  that  the 
jurisdiction  depends  upon  the  sum  in  dispute  as  it  stands  upon  the  writ 
of  error;  said  to  be  overruled  by  Gordon  v.  Ogden  in  Hilton  v.  Dickinson, 
108  U.  S.  169,  172,  174,  175,  27  L.  Ed.  689,  690,  691,  2  Sup.  Ct.  426,  428, 
430,  laying  down  the  rule  as  to  cases  in  which  the  Supreme  Court  had 
jurisdiction;  Decker  v.  Williams,  73  Fed.  310,  holding  the  District  Court 
of  (Alaska  had  no  jurisdiction  over  appeals  from  United  States  commis- 
sioners unless  the  amount  involved  is  two  hundred  dollars;  Gordon  v.  Ross. 

2  Cal.  157,  holding  that  though  the  plaintiff  recover  less  than  two  hundred 
dollars,  the  defendant  may  appeal  if  the  costs  added  to  the  judgment 
exceed  two  hundred  dollars;  Tipton  v.  Chambers,  1  Met.  (Ky.)  568,  hold- 
ing the  judgment  to  be  the  test  of  appellate  jurisdiction;  Quimby  v.  Hop- 
ping, 52  N.  J.  L.  118,  19  Atl.  123,  the  court  saying  that  the  act  of  New 
Jersey  differs  from  the  Federal  act. 

Distinguished  in  Holden  v.  Utah  etc.  Co.,  82  Fed.  210,  holding  rule 
changed  by  act  of  March  3,  1875 ;  Levinski  v.  Middlesex  Bank.  Co.,  92  Fed. 
458,  holding  demurrer  to  part  of  items  does  not  affect  Federal  jurisdiction 
on  removaL 


3  Dall.  409-415  NOTES  ON  U.  S.  REPORTS.  80 

Modified  in  Greene  Co.  Bank  v.  Teasdale  Comm.  Co.,  112  Fed.  803, 
holding  in  action  for  recovery  of  money  only  amount  of  recovery  deter- 
mines jurisdiction. 

Miscellaneous.    Cited  erroneously  in  Dale  v.  The  Governor,  3  Stew.  418. 

3  Dall.  409-410,  1  I..  Ed.  668,  DEWHUB9T  v.  G0U1.THABD. 

Snpreme  Court  will  not  take  cognizance  of  any  suit  or  controversy  which 
was  not  hronght  hef ore  it  hy  regular  process  of  law.  ^ 

Cited  in  Hoover  v.  Hanna,  3  Blackf.  48,  where  suit  was  commenced  by 
appearance  of  parties  and  their  filing  an  agreement  as  to  facts;  Caulk  v. 
Fox,  13  Fla.  147,  where  it  was  apparent  that  only  portion  of  proceedings 
were  embraced  in  what  was  certified. 

Distinguished  in  Mitchell  v.  McMillan,  3  Mart.  (0.  S.)  684,  6  Am.  Dec. 
694,  where  effect  of  foreign  discharge  was  considered,  court  saying  point 
was  not  discussed  in  the  principal  case,  as  it  went  off  on  another  ground. 

S  DaU.  411-415,  1  L.  Ed.  658,  TOWLEB  v.  UNDSET. 

When  State  Interested  for  purpose  of  Snpreme  Court  jurisdiction. 

Approved  in  Coal  &  Coke  Ry.  Co.  v.  Conley,  67  W.  Va.  142,  67  S.  E..619, 
holding  State  had  not  such  interest  in  penalties  imposed  for  excess  car- 
riage charges  as  to  make  it  party  to  suit  to  declare  void  act  imposing 
charges;  dissenting  opinion  in  Hopkins  v.  Hebard,  194  Fed.  315,  114 
C.  C.  A.  261,  majority  holding  question  not  involved;  Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  288,  32  L.  Ed.  242,  8  Sup.  Ct.  1373,  holding  Supreme 
Court  did  not  have  original  jurisdiction  of  an  action  by  State  upon  judg- 
ment recovered  by  it,  in  one  of  its  own  courts,  against  a  citizen ;  dissenting 
opinion  in  Poindexter  v.  Greenhow,  114  U.  S.  296,  29  L.  Ed.  195,  6  Sup.  Ct. 
917,  where  the  question  was  as  to  whether  a  State  had  an  interest ;  McNutt 
V.  Bland,  2  How.  27,  11  L.  Ed.  166»  holding  that  a  citizen  of  another  State 
has  right  to  sue  upon  a  sheriff's  bond,  and  fact  that  the  Governor  and 
party  sued  are  citizens  of  the  same  State  will  not  oust  Circuit  Court  of 
jurisdiction. 

Distinguished  in  Governor  of  Georgia  v.  Madrazo,  1  Pet.  122,  7  L.  Ed. 
79,  where  court  said  that  there  was  no  case  in  which  State  had  been  sued 
without  making  it  party ;  New  Jersey  v.  New  York,  5  Pet.  290,  8  L.  Ed.  129, 
the  court  saying  that  no  doubt  was  entertained  in  the  principal  case  of 
the  propriety  of  exercising  original  jurisdiction,  had  the  State  been  a 
party:  State  ex  rel.  Drake  v.  Doyle,  40  Wis.  206,  where  suit  was  prose- 
cuted in  Federal  court  against  State  officer,  in  his  official  capacity  only, 
to  affect  right  of  State  only. 

State  may  file  bill  to  quiet  title  to  boundaries  of  disputed  territory,  and 
Supreme  Court  may  appoint  commissioners  to  ascertain  and  report  these 
boundaries^ 

Cited  in  Rhode  Island  v.  Massachusetts,  12  Pet,  727,  744,  749,  9  L.  Ed. 
1261,  1268,  1670,  where  the  court  considered  the  question  of  jurisdiction 
over  boundaries  between  States;  United  States  v.  Texas,  143  U.  S.  647,  36 


f 

f 


81  CLARKE  V.  RUSSEL.  3  Dall.  415-426 

L  Ed.  298»  12  Sup.  Ct.  494,  holding  Supreme  Court  had  original  jurisdic- 
tion of  a  suit  in  equity,  by  United  States  against  a  State,  to  determine 
boundary  between  that  State  and  a  territory ;  Kennedy  v.  Elliott,  85  Fed. 
835,  holding  suit  to  quiet  title  would  not  lie  by  an  individual  while  bound- 
ary of  States,  involving  the  particular  property,  was  in  controversy. 

Certiorari  never  Issues  from  superior  to  Inferior  court  to  remove  cause 
merely  because  of  defect  of  Jurisdiction. 

Approved  in  United  States  v.  Dickinson,  213  U.  S.  102,  53  L.  Ed.  719, 
29  Sup.  Ct.  485,  power  to  issue  writ  does  not  extend  to  give  appeal  in 
eriminal  case  to  correct  mere  error;  Whitney  v.  Dick,  202  U.  S.  138,  139, 
50  L.  Ed.  965,  966,  26  Sup.  Ct.  584,  certiorari  cannot  be  issued  by*Circuit 
Court  of  Appeals  to  review  conviction  in  lower  Federal  court;  State  etc. 
Fourth  Bank  of  Philadelphia  etc.  v.  Johnson,  103  Wia.  625,  51  L.  R.  A. 
83,  79  N.  W.  1091,  authorizing  certiorari  as  ancillary  to  mandamus  to 
inferior  court;  People  ex  rel.  v.  Lindsay,  1  Idaho,  398,  to  point  that  it 
is  practice  of  Supreme  Court  of  United  States  to  issue  writ  of  certiorari 
only  in  aid  of  its  appellate  jurisdiction;  Basnet  v.  City  of  Jacksonville, 
18  Fla.  527,  holding  that  if  court  has  jurisdiction,  and  there  is  no  irregu- 
larity or  illegality  in  the  procedure,  the  certiorari  must  be  quashed; 
American  Constr.  Co.  v.  Jacksonville  etc.  Ry.  Co.,  148  U.  S.  380,  37  L.  Ed. 
490,  13  Sup.  Ct.  762,  to  point  that  the  writ  has  never  been  issued  to  bring 
up,  from  inferior  court  of  United  States,  for  trial,  a  case  within  exclusive 
jurisdiction  of  higher  court. 

3  DalL  415-425,  1  L.  Ed.  660,  CTLABKE  ▼.  BTTSSEL. 

Acknowledgment  of  Judge's  seal,  affixed  to  blU  of  exceptions,  not  neces- 
sary where  bill  of  ezcexytions  tacked  to  record. 

Cited  in  Brown  v.  Caldwell,  10  Serg.  &  R.  114,  13  Am.  Dec.  662,  court 
sayii^  bill  of  exceptions  is  not  part  of  the  record  it  is  tacked  to,  and  its 
authority  depends  upon  acknowledgment  by  judge  of  his  seal;  Withers 
V.  Gillespie,  7  Serg.  &  R.  15,  bill  of  exceptions  is  part  of  record  anf  always 
comes  up  with  it;  Agnew  v.  Campbell,  17  N.  J.  L.  296,  holding  bill  of 
exceptions  must  be  drawn  up  and  sealed  at  time  of  trial  and  cannot  be 
sealed  afterward  without  consent. 

Identification  of  letters  in  bill  of  exceptions. 

Cited  in  Sams  v.  King,  18  Fla.  555,  holding  that  where  papers  are 
referred  to  in  bill  of  exceptions,  filed  in  Circuit  Court,  with  sufficient  cer- 
tainty, insertion  of  papers  in  extenso  in  the  record  prepared  for  appellate 
court  is  proper. 

Evidence  not  stated,  or  referred  to,  In  bill  of  exceptions,  must  be  excluded 
from  discussion  arising  on  bill  of  exceptions. 

Cited  in  Downing  v.  Funk,  5  Rawle,  73,  where  counsel  discussed  prin- 
ciples not  presented;  Barnard  v.  Vignaud,  10  Mart.  (0.  S.)  637,  to  point 
that  party  objecting  to  introduction  of  witness  must  declare  why  he  is 
incompetent. 
I— a 


3  Dall.  415-426  NOTES  ON  U.  S.  REPORTS.  82 

Bills  of  exclxuigB  not  accepted  and  protested  for  nonpayment  are  admis- 
eible  in  an  action  for  nonpayment  wltlioiit  evidence  of  nonacceptance. 

Cited  in  Hodgsgn  v.  Turner,  1  Cr.  C.  C.  76,  Fed.  Caa.  6570,  holding  tliat 
in  an  action  against  indorser  of  a  foreign  bill  of  exchange  for  nonpay- 
ment, it  is  not  necessary  to  produce  protest  for  nonacceptance;  Read  v. 
Adams,  6  Serg.  &  R.  358,  359,  holding  that  in  an  action  by  indorsee  of 
foreign  bill,  protested  for  nonacceptance,  it  was  not  necessary  to  prave 
notice  of  nonacceptance  of  bill. 

Distinguished  in  United  States  v.  Barker,  4  Wish.  469,  Fed,  Cas.  14,520, 
holding  that  notice  of  refusal  to  accept  or  of  protest  for  nonacceptance 
must  be  given;  Duncan  v.  Course,  1  Mill  (S.  C),  103,  holding  that  protest 
of  foreign  bill  for  nonacceptance  is  necessary. 

Denied  in  Cullum  v.  Casey,  9  Port.  134,  83  Am.  Dec.  804,  holding  weight 
of  authority  is  in  fevor  of  necessity  of  protest  where  acceptance  of  foreign 
bill  is  refused. 

Protest  as  evidence.    Note,  96  Am.  Dec.  604. 

Protect  of  negotiable  instruments.    Note,  48  Am.  Dec.  228.  i 

Undertaking  which  is  required  to  be  in  writing  cannot  be  varied  or  added 
to  by  parol.  ' 

Approved  in  Pierce  v.  Cobb,  161  N.  C.  307,  77  S.  E.  352,  excluding  parol 
evidence  to  avoid  condition  in  note;  Bradley  v.  Washington  etc.  P.  Co., 
13  Pet.  101,  10  L.  Ed.  79,  holding  parol  evidence  admissible  to  apply  the 
contract  to  its  proper  subject  matter,  where  otherwise  application  could 
not  be  made;  Rogers  v.  Atkinson,  1  Ga.  20,  holding  that  conversations  and 
stipulations  anterior  to  or  contemporaneous  are  merged;  Ratliff  v.  Ellis, 
2  Iowa,  63,  68  Am.  Dec.  478,  holding  that  an  absolute  deed  cannot  be 
changed  into  one  of  trust  unless  there  be  fraud,  accident  or  mistake ;  Rich 
v.  Elliott,  10  Vt.  214,  holding  parol  evidence  not  admissible  to  show  that 
different  line  was  intended  than  that  described  in  deed ;  Bank  of  St.  Mary's 
V.  Mumford,  6  Ga.  77,  holding  parol  evidence  admissible  in  suit  against 
joint  ai^i  several  promisors  to  show  that  one  was  security  only;  Snapp 
V.  Moore,  2  Overt.  237,  holding  that  admissions  of  joint  obligor,  though 
not  a  party,  are  admissible  against  his  co-obligors;  Smith  v.  Williams,  1 
Murph.  (N.  C.)  433,  4  Am.  Dec.  569,  where,  on  sale  of  slave,  it  was  held 
that  warranty  of  soundness  could  not  be  proved  by  parol;  Bumford  v. 
Purcell,  4  G.  Greene,  489,  holding  parol  promise  to  pay  debt  of  another 
without  consideration,  void;  Eaton  v.  Mayo,  118  Mass.  143,  where  ques- 
tion was  as  to  whether  certain  letter  amounted  to  guaranty  j  O'Harra  v. 
Hall,  4  Dall.  340,  1  L.  Ed.  859,  where,  in  an  action  by  assignee  of  bond 
against  assignor,  plaintiff  attempted  to  show  assignor  had  guaranteed  pay- 
ment; Hodgkins  v.  Bond,  1  N.  H.  286,  an  assumpsit  upon  a  promise  of  a^ 
defendant  to  guarantee  the  pa3nncnt  of  a  note;  Douglass  v.  Reynolds,  7 
Pet.  119,  8  L.  Ed.  629,  where,  in  an  action  upon  guaranty,  evidence  was 
held  admissible  to  establish  that  credit  had  been  given  upon  strength  of 
it;  Hall  v.  Rand,  8  Conn.  575,  where,  in  an  action  on  a  guaranty,  parol 
evidence  of  subject  matter  and  of  circumstances  was  held  inadmissible; 
in  note  to  Lanusse  v.  Barker,  3  Wheat.  148,  4  L.  Ed.  856,  where  cases  on 


83  SIMS  V.  IRVINE.  3  DaU.  425-466 

the  subject  of  the  construction  of  guarantees  are  cited;  O'Harra  y.  Hall, 
18  Fed.  Cas.  628,  rejecting  evidence  to  alter  writing;  Emerson  v.  Slater, 
22  How.  42,  16  L.  £d.  365,  holding  parol  evidence'  admissible  to  show  that 
parties  had' subsequently  made  new  oral  agreement;  Swain  v.  Seamans, 
9  Wall.  272,  19  L.  Ed.  660,  written  contract,  within  statute  of  frauds, 
cannot  be  varied  by  parol  agreement;  Peisch  v.  Dickson,  1  Mason,  12, 
Fed.  Cas.  10,911,  where  rules  as  to  latent  and  patent  ambiguities  were 
stated. 

Distinguished  in  Packard  v.  Richardson,  17  Mass.  142,  9  Am.  Dec.  135, 
where  principal  case  was  cited  as  deciding  that  consideration  of  promise 
to  pay  debt  of  another  must  be  in  writing. 

S  DUlL  425-466,  1  L.  Ed.  665,  SIMS  v.  IBVINE. 

Compact  between  States  by  which  disputed  territory  ceded  together  with 
act  confirming  rights  of  holders  of  cede^  territory,  confers  complete  legal  title. 

Cited  in  Rhode  Island  v.  Massachusetts,  12  Pet.  725,  9  L.  Ed.  1261,  a 
suit  to  establish  a  boundary;  Pollard  v.  Kibbe,  14  Pet.  413,  416,  10  L.  Ed. 
519,  521,  where  ejectment  was  brought  for  piece  of  land  in  Mobile,  title 
to  which  was  confirmed  by  special  act  of  Congress ;  Coleman  v.  Doe  ex  dem. 
Tish  Ho  Mah,  4  Smedes  &  M.  49,  holding  that  legal  title  is  vested  in  an 
Indian  who  brought  himself  within  provisions  of  fourteenth  article  of 
the  Dancing  Creek  treaty. 

Warrant  and  survey  accompanied  by  payment,  though  unaccompanied  hy 
patent^  give  legal  right  of  entry. 

Cited  in  Cox  v.  Cromwell,  3  Binn.  119,  holding  that  an  estate  of  this  kind 
is  stronger  than  that  of  man  who  has  contracted  to  purchase  land  and 
paid  his  tnoney  but  obtained  no  conveyance;  Wells  v.  Wright,  3  Wash. 
254,  Fed.  Cas.  17,405,  which  held  that  party  cannot  set  up  title  by  settle- 
ment prior  to  day  stated  for  commencement  of  his  settlement  in  warrant 
issued  to  him;  Herron  v.  Dater,  120  U.  S.  471,  80  L.  Ed.  751,  7  Sup.  Ct. 
623,  and  Kirk  v.  Smith,  9  Wheat.  297,  6  L.  Ed.  94,  where  in  both  cases 
court  said  that  warrant,  survey  and  payment  give  an  absolute  estate; 
Goodlet  V.  Smithson,  5  Port.  249,  30  Am.  Dec.  563,  holding  that  purchaser, 
by  act  of  entry  and  payment,  acquires  an  inchoate  legal  title  which  may 
be  alienated  or  divested;  Winter  v.  Jones,  10  Ga.  202,  54  Am.  Dec.  387, 
holding  that  holder  of  receipt  from  State  for  price  is  indefeasibly  entitled 
to  patent;  Cawley  v.  Johnson,  21  Fed.  495,  holding  receipt  issued  upon 
payment  constitutes  such  conveyance  that  it  will  form  foundation  for 
adverse  possession;  Murphy  v.  Packer,  152  U.  S.  399,  38  L.  Ed.  490,  14 
Sup.  Ct.  636,  holding  that  it  was  not  competent  for  the  State  to  affect 
that  title  by  subsequent  patent  to  stranger;  dissenting  opinion  in  Bagnell 
V.  Broderiok,  13  Pet.  456,  10  L.  Ed.  245,  where  it  was  held  that  patent  from 
United  States  was  conclusive  in  an  action  at  law;  Hamilton  v.  Avery,  20 
Tex.  635,  holding  that  proviso  in  an  act  saving  rights  of  third  persons, 
saved  claim  of  one  who  had  caused  certificate  to  be  located  on  part  of 
land;  Mitchell  v.  United  States,  9  Pet.  747,  9  KEd.  296,  in  which  claim 
to  landfr  derived  from  grants  by  Creek  and  Seminole  Indians,  ratified  by 


3  DalL  425-466  NOTES  ON  U.  S.  REPORTS.  84 

local  authorities  of  Spain  before  cession,  was  confirmed;  Doe  v.  Eslava, 
9  How.  447,  13  L.  Ed.  210,  where  there  were  conflicting  claims  and  both 
had  been  confirmed  by  acts  of  Congress,  and  question  was  as  to  which 
claim  had  priority ;  Mayer  v.  Foulkrod,  4  Wash.  355,  Fed.  Cas.  9341,  where 
court  considered  effect  of  legal  remedy  upon  jurisdiction  of  equity. 

Limited  in  Copley  v.  Riddle,  2  Wash.  354,  Fed.  Cas.  3214,  where  eject- 
ment was  brought  and  plaintiff  nonsuited  beci^use  no  proof  of  pajnnent 
appeared;  Dubois  v.  Newman,  4  Wash.  77,  Fed.  Cas.  4108,  court  saying 
this  doctrine  was  peculiar  to  Pennsylvania. 

Where  navigable  river  is  boundary,  middle  of  bed  of  river  la  boundary 
line. 

Cited  in  Trapier  v.  Wilson,  2  McCord,  197,  where  grant  of  land  having 
general  course  of  an  island  was  construed. 

A  warrant  and  survey  accompanied  by  payment  confer  title  snfilcieiit  to 
sustain  ejectment,  althou^  patent  haa  not  issued. 

Approved  in  Beatty  v.  Wilson,  161  Fed.  460,  to  point  that  principal 
case  recognized  that  purchaser  of  school  lands  prior  to  issuance  of  patent 
acquired  only  equitable  interest  and  could  not  maintain  ejectment  against 
subsequent  purchaser  from  state ;  Doe  v.  West,  1  Blackf .  134,  holding  that 
in  ejectment,  prior  peaceable  possession  under  claim  of  right  will  prevail 
against  mere  intruding;  Jackson  ex  rel.  McConnell  v.  Wilcox,  1  Scam. 
373,  holding  that  certificate  of  register  of  land  office  is  of  as  high  au- 
thority as  patent;  Donald  v.  McKinnon,  17  Fla.  749,  where  party  pur- 
chased title  of  landlord  at  execution  and  sued  lessee  to  recover  possession; 
Strother  v.  Lucas,  12  Pet.  452,  9  L.  Ed.  1154,  an  ejectment  upon  title 
confirmed  by  board  of  commissioners;  Wilson  v.  Kilcannon,  1  Overt.  205, 
where  bill  in  equity  was  brought  to  prevent  dispossession  of  plaintiff  by 
an  ejectment  brought  by -defendant. 

Statute  will  be  construed,  if  possible,  so  as  not  to  revoke  grant  alzBadj 
made. 

Approved  in  Nivens  v.  Nivens,  4  Ind.  Terr.  579,  76  S.  W.  115,  .holding 
rights  as  widow  and  heir  under  Cherokee  statute  of  descent  having  vested 
they  were  not  affected  by  subsequent  repeal  of  statute. 

Miscellaneous.  Cited  in  Gravenberg  v.  Laws,  100  Fed.  4,  refusing  inter- 
vention by  labor  lienors  in  action  at  law  to  recover  fixed  sum  due  under 
a  contract. 


NOTES 

ONTHB 


UNITED  STATES  REPORTS. 


IV  DALLAS 


4  DaU.  1-6,  1  Ik  Ed.  715,  STATE  OF  NEW  YOBK  Y.  OONNEOTIOTTT. 

Act  reqnixing  notice  to  advene  party  extends  to  injunctions  granted  by 
Supreme,  or  Circuit  Ctourts^  as  well  as  by  single  judge. 

Cited  in  Wynn  v.  Wilson,  Hempst.  699,  Fed.  Cas.  18,116,  denying  injunc- 
tion; Mowrey  y.  Indianapolis,  4  Biss.  80,  Fed.  Cas.  9891,  dissolving  injunc- 
tion. 

Injimction  to  stay  proceedings  at  law  granted  only  at  instance  of  party  to 
Rich  proceedings  or  one  Interested  therein. 

Cited  and  principle  applied  in  McDowell's  Appeal,  123  Pa.  St.  411,  16 
Atl.  759,  where  plaintiff  was  heldto  be  party  interested,  within  rule. 

Instance  of  jurisdiction  of  Supreme  Court  where  State  a  party. 

Cited  as  instance  of  exercise  of  original  jurisdiction  by  Supreme  Court 
where  suit  against  a  State  in  Governor  v.  Madrazo,  1  Pet.  122,  7  L.  Ed.  79 ; 
New  Jersey  v.  New  York,  5  Pet.  290,  8  L.  Ed.  129,  Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  288,  32  L.  Ed.  242,  8  Sup.  Ct.  1373,  and  State  ex  rel. 
Drake  v.  Doyle,  40  Wis.  205;  as  showing  that  Federal  Supreme  Court 
exercises  its  jurisdiction  without  enabling  acts  of  Congress  in  refuting 
argument  that  enabling  act  was  necessary  to  exercise  of  jurisdiction  of 
justice  of  the  peace,  More  v.  Woodruff,  5  Ark.  215;  in  refuting  argu- 
ment as  to  concurrent  jurisdiction  of  law  and  equity  in  State  Court, 
Hempstead  v.  Watkins,  6  Ark.  357,  42  Am.  Dec.  702;  erroneously  to  a 
question  of  admiralty  jurisdiction  in  Waring  v.  Clarke,  5  How.  489,  12 
L.  Ed.  249. 

Approved  in  Missouri  v.  Illinois  etc.  Dist.,  180  U.  S.  224,  45  L.  Ed.  506, 
21  Sup.  Ct,  337,  upholding  Supreme  Court's  jurisdiction  as  involving  con- 
troversy between  two  States;  State  v.  Frost,  113  Wis.  655,  89  N.  W.  923, 
arguendo. 

Baprems  Court  htm  no  jnrlsdiction  of  salt  by  State  respecting  territory 
onlflss  sabstantlal  xigbt  of  soil  as  distinguished  from  mere  political  jurisdiction 
involved. 

(86) 


4  Dall.  7-11  NOTES  ON  U.  S.  REPORTS.  86 

Cited  in  Georgia  v.  Stanton,  6  Wall.  72,  18  L.  Ed.  723,  holding  suit  call- 
ing in^question  reconstruction  acts  involved  political  question  within  rule, 
and  would  not  he  considered ;  dissenting  opinion  in  Rhode  Island  v.  Massa- 
chusetts, 12  Pet.  753,  9  L.  Ed.  753,  arguing  that  boundary  dispute  between 
States  raised  political  question;  dissenting  opinion  in  Hopkins  v.  Hebard, 
194  Fed.  316,  114  C.  C.  A.  261,  majority  not  passing  on  point. 

4  I>alL  7-8,  1  L.  Ed.  717,  TUBNEB  v.  EKBILLE. 

JurlBdlction  depending  upon  alienage  or  diverse  dtlienshlp  must  affirma- 
tlvely  appear  on  record. 

Cited  in  Morgan  v.  Gay,  19  Wall.  83,  22  L.  Ed.  100,  where  citizenship 
of  plaintiff's  assignors  was  not  averred  and  judgment  reversed;  Bank  v. 
Willis,  3  Sumn.  473,  Fed.  Cas.  886,  applying  rule  to  averments  of  citizen- 
si  ip  of  members  of  corporation;  Morrison  v.  Bennet,  1  McLean,  330,  Fed. 
Cas.  9843,  holding  failure  to  aver  citizenship  of  one  of  several  defendants 
ousted  jurisdiction  as  to  him;  Commissioners  v.  Thompson,  18  Ala.  697, 
applying  rule  to  commissioners'  court  of  State;  Ingraham  v.  Arnold,  1 
J.  J.  Marsh.  407,  holding  averments  suflScient;  Camp  v.  Wood,  10  Watts. 
122,  requiring  that  certain  jurisdictional  facts  appear  in  record  of  justice 
court  action;  dissenting  opinion  in  Dred  Scott  v.  Sandford,  19  How.  473, 
15  L.  Ed.  728,  arguing  that  plea  to  jurisdiction  of  Circuit  Court  could  not 
be  waived;  dissenting  opinion  in  Marshall  v.  Baltimore,  16  How.  340,  14 
L.  Ed.  964,  majority  holding  sufficient  an  averment  that  defendant  was 
body  corporate  created  by  legislature  of  Maryland;  dissenting  opinion  in 
McNutt  V.  Bland,  2  How.  20,  11  L.  Ed.  163,  majority  upholding  federal  ju- 
risdiction over  suit  on  sheriff's  bond  by  nonresident;  dissenting  opinion  in 
Bierbower  v.  Miller,  30  Neb.  181,  47  N.  W.  2,  majority  holding  nonresident 
defendant  cannot  remove  cause  for  local  prejudice  unless  matter  in  dispute 
exceeds  two  thousand  dollars. 

CkMrtfl  In  Supreme  Court  taxed  against  def endaat  In  error,  mit  being 
reversed  for  want  of  JurlBdlctiLon  In  Circuit  Court. 

Cited  in  Bradstreet  v.  Higgins,  114  U.  S.  264,  29  L.  Ed.  176,  5  Sup.  Ct. 
880,  holding  that  defendant  in  error  may  recover  costs  incident  to  motion 
to  dismiss  for  want  of  jurisdiction. 

Want  of  Jurisdiction  of  Circuit  Court  raised  by  writ  of  error. 

Cited  in  Jim  v.  State,  3  Mo.  163,  to  point  that  want  of  jurisdiction  in 
Federal  courts  is  taken  advantage  of  by  writ  of  error,  by  demurrer,  or  at 
trial  by  motion  in  arrest  of  judgment. 

4  Daa  8-11,  1  L.  Ed.  718,  TUBNEB  v.  BANK  OF  NOBTH  AMEBIOA. 

Assignee  of  chose  In  action  may  not  sue  in  Federal  Circuit  Court  unless  his 
assignor  might  have  done  so. 

Approved  in  Kolze  v.  Hoadley,  200  U.  S.  83,  50  L.  Ed.  381,  26  Sup.  Ct. 
220,  applying  rule  in  suit  to  foreclose  trust  deed,  though  bill  also  prays 
for  cancellation  of  release  of  trust  deeds  to  grantor  as  in  fraud  of  com- 


87  TURNER  v.  BANK  OF  NORTH  AMERICA.      4  Dall.  g-11 

plainant'B  rights,  wlio  held  deeds  as  collateral  security  for  loan  to  trustee ; 
Emsheimer  ▼.  New  Orleans,  186  U.  S.  47,  46  L.  Ed.  1048,  23  Sup.  Ct.  646, 
Circuit  Court  jurisdiction  over  assignees  of  chose  in  action  relates  to  time 
of  bringing  suit;  Portage  City^  Water  Co.  v.  City  of  Portage,  102  Fed.  7Tl, 
holding  assignee  of  chose  in  action  may  sue  in  Federal  court  if  he  is  resi- 
dent of  different  State  from  defendant ;  Utah-Nevada  Co.  v.  De  Lamar,  133 
Fed.  121,  122,  66  C.  C.  A.  179,  Federal  court  has  no  jurisdiction  of  suit  by 
assignee  of  oral  coqtract  to  recover  money  due  thereon,  where  assignor 
could  not  have  maintained  suit  in  such  court ;  MoUan  v.  Torrance,  9  Wheat. 
539,  6  L.  Ed.  154,  indorsee  suing  a  remote  indorser  must  show  citizenship 
of  intermediate  indorsers  to  be  different  from  that  of  defendant;  Moigan 
V.  Gay,  19  Wall.  83,  22  L.  Ed.  100,  holding  similarly  as  to  suit  by  indorsee 
against  payee;  Coffee  v.  Planters'  Bank,  13  How.  187,  14  L.  Ed.  106,  deny- 
ing jurisdictioin  of  suit  by  indorsee  of  check  on  this  ground;  Phillips  v. 
Preston,  5  How.  291,  12  L.  Ed.  157,  and  Bank  v.  Moss,  6  How.  36,  12  L.  Ed. 
334,  appljring  rule  in  denying  jurisdiction  as  to  counts  of  complaint  based 
upon  negotiable  instrument,  but  sustaining  jurisdiction  as  to  certain  other  ^ 
common  money  counts  for  same ;  Brown  v.  Noyes,  2  Wood.  &  M.  79,  Fed.  Cas. 
2023,  ruling  similarly;  United  States  v.  McNair,  56  Fed.  327,  and  Rogers 
▼.  Ldnn,  2  McLean,  127,  Fed.  Cas.  12,015,  sustaining  demurrer  for  absence 
of  allegation  of  diverse  citizenship  of  original  parties;  Corhin  v.  Black 
Hawk,  105  U.  S.  667,  26  L.  Ed.  1139,  applying  rule  to  suit  for  specific  per- 
formance, holding  it  a  suit  to  recover  a  chose  in  action  within  the  statute; 
Bradley  v.  Rhines,  8  Wall.  396,  19  L.  Ed.  469,  applying  rule  to  suit  upon 
lease  by  an  assignee;  Parker  v.  Ormsby,  141  U.  S.  85,  35  L.  Ed.  656,  11 
Slip.  Ct.  913,  reviewing  authorities,  noting  limitations  of  rule,  and  quoting 
later  statutes  of  1875  and  1887  abrogating  its  provisions  as  to  certain 
negotiable  instruments. 

Distinguished  in  Evans  v.  Gee,  11  Pet.  83,  9  L.  Ed.  641,  holding  trans- 
feree of  bill  of  exchange  might  sue  in  Federal  court  although  original 
parties  were  all  of  same  State ;  Bushnell  v.  Kennedy,  9  Wall.  39.0,  19  L.  Ed. 
738,  holding  rule  inapplicable  to  cause  removed  from  State  court;  Holmes 
V.  X5oldsmith,  147  U.  S.  157,  37  L.  Ed.  121,  13  Sup.  Ct.  290,  also  holding 
it  inapplicable  where  maker  of  note  was  an  accommodation  party  to  use  of 
payee,  a  citizen  of  same  State,  and  transferee  was  of  a  different  State; 
Jewett  V.  Bradford,  45  Fed.  802,  holding  suit  to  compel  transfer  of  cor- 
porate stock  on  corporate  books,  not  suit  on  chose  in  action  within  act; 
Vamer  v.  West,  1' Woods,  495,  Fed.  Cas.  16,885,  denying  application  of 
principle  where  note  was  made  payable  to  A  B,  or  bearer,  and  transferred 
by  mere  delivery;  Dundas  v.  Bowler,  3  McLean,  208,  Fed.  Cas.  4140,  where 
instrument  sued  upon  was  mortgage  aAd  suit  was  by  an  assignee  to  fore- 
close, though  original  parties  were  of  same  State.  The  rule  was  abrogated 
as  to  n^^tiable  instruments  by  act  of  1875,  Adams  v.  Commissioners, 
23  Fed.  212,  holding  county  warrants  negotiable  instruments  under  act  of 
1875,  and  restored  as  to  all  save  bills  of  exchange  by  act  of  1887,  Parker 
V.  Ormsby,  141  U.  S.  85,  35  L.  Ed.  656.  U  Sup.  Ct.  913. 


4  Dall.  8-U  NOTES  ON  U.  S.  REPORTS.  88 

Inferior  Federal  conrtB  are  of  limited  Jnrlsdictioii  and  Jurisdictional  facts 
should  appear  upon  record.  Averment  tliat  A  "used  trade"  at  certain  place  is 
InsuffldMit  averment  of  his  citizenship. 

Approved  in  Teel  v.  Chesapeake  etc.  Ry.  Co.,  204  Fed.  919,  47  L.  R.  A. 
(N.  S.)  21,  123  C.  C.  A.  240,  holding  provision  of  Employers'  Liability  Act 
against  removal  of  cases  from  State  to  Federal  courts  applied  to  all  sub- 
sequent actions,  whether  cause  of  action  arose  before  or  after  act;  Gibson 
V.  Bellingham  etc.  Ry.  Co.,  213  Fed.  489,  holding  District  Court  could  not 
hold  void  provision  of  act  of  Congress  limiting  right  of  removal  from  State 
court;  Farr  V.  Hobe-Peters  Land  Co.,  188  Fed.  15,  16,  110  C.  C.  A.  160, 
sustaining  jurisdiction  where  original  holder  of  chose  in  action  as  well  as 
plaintiff  and  immediate  assignor  might  have  sued  in  that  court ;  Lewis  Pub. 
Co.  V.  Wyman,  152  Fed.  202 ,  Divine  v.  Unaka  Nat.  Bank,  126  Tenn.  108, 
39  L.  R.  A.  (N.  S.)  586,  140  S.  W.  749,  and  Fish  v.  Chicago  etc.  Ry.  Co., 
263  Mo.  117,  Ann.  Cas.  1916B,  147,  172  S.  W.  343,  all  holding  State  courts 
had  jurisdiction  over  cases  involving  rights  under  Federal  statutes  unless 
deprived  thereof  by  Federal  law ;  Mahopoulus  v.  Chicago  etc.  Ry.  Co.,  167 
Fed.  167,  holding  action  by  nonresident  alien  against  corporation  in  court 
of  State  where  it  does  business,  not  removable  to  State  where  corporation 
resides,  on  ground  of  diversity  of  citizenship;  Kettelhake  v.  American  Car 
&  Foundry  Co.,  243  Mo.  417,  147  S.  W.  480,  holding  alleged  error  in  refus- 
ing removal  to  Federal  court  did  not  involve  validity  of  authority  exercised 
under  United  States ;  Grace  v.  American  Co.,  109  U.  S.  283,  27  L.  Ed.  936, 
3  Sup.  Ct.  210,  holding  averment  that  A  is  a  resident,  or  "of"  a  certain 
State  insufficient ;  Assessor  v.  Osbornes,  9  Wall.  575,  19  L.  Ed.  761,  holding 
insufficient,  averment  that  parties  were  in  trade  in  certain  place;  Con- 
tinental So.  V.  Rhoads,  119  U.  S.  239,  SO  L.  Ed.  380,  7  Sup.  Ct.  193,  hold- 
ing essential  an  averment  of  citizenship  of  administrator  as  well  as  of 
his  testator;  Bank  v.  Willis,  3  Sumn.  473,  Fed.  Cas.  885,  requiring  aver- 
ment that  citizenship  of  all  members  of  a  plaintiff  corporation  was  different 
from  that  of  defendant;  Fideliter  v.  United  States,  1  Sawy.  156,  1  Abb. 
579,  Fed.  Cas.  4755,  holding  libel  for  condemnation  of  vessel  defective  for 
failure  to  allege  seizure  of  the  vessel;  Clark  v.  Harkness,  1  Scam.  58  (over- 
ruled in  Kenney  v.  Greer,  13  III.  452),  holding  State  Circuit  Court  to  be 
limited;  Beebe  v.  Armstrong,  11  Mart.  441,  holding  that  defendant  seeking 
removal  to  Federal  court  must  aver  citizenship  of  plaintiff  as  of  the  do- 
mestic State ;  Br<twn  v.  Noyes,  2  Wood.  &  M.  79,  Fed.  Cas.  2023 ,  Shaw  v. 
Quincy  M.  Co.,  145  U.  S.  447,  36  L.  Ed.  770,  12  Sup.  Ct.  936,  and  Marks 
V.  Marks,  75  Fed.  325,  involving  questions  of  acts,  necessary  to  effect  change 
of  residence  and  citizenship;  dissenting  opinion, in  Marshall  v.  Railroad, 
16  How.  340,  341,  14  L.  Ed.  964,  arguing  that  it  is  insufficient  to  aver  that 
defendant  was  a  body  corporate  created  by  the  legislature  of  Maryland. 

Federal  Oircnit  Courts  are  not  inferior  courts  but  courts  of  limited  Juris- 
diction and  Jurisdictional  facts  mast  ai&rmatively  appear. 

Approved  in  Hornthall  v.  The  Collector,  9  Wall.  565,  19  L.  Ed.  662,  fol- 
lowing rule;  Ex  parte  Wisner,  203  U.  S.  455,  61  L.  Ed.  266,  27  Sup.  Ct.  150, 
holding  Circuit  Court  must  remand  to  State  court  case  transferred  to  it 


89  TURNER  v.  BANK  OP  NORTH  AMERICA.      4  Dall.  ^-11 

but  of  which  it  had  no  jurisdiction ;  United  States  v.  Barrett,  135  Fed.  194, 
Federal  court  has  no  jurisdiction  over  action  on  bond  of  govei^nment  con- 
tractor for  use  of  materialman  unless  requisite  citizenship  and  amount  are 
affirmatively  shown ;  Yocum  v.  Parker,  130  Fed.  771,  66  C.  C.  A.  80,  aver- 
ment of  residence  is  not  equivalent  to  one  of  citizenship  for  purpose  of 
Federal  jurisdiction;  Huntington  v,  Pinney,  126  Fed.  239,  holding  where 
in  suit  to  quiet  title  brought  against  several  defendants,  only  two  joined 
to  remove  cause  on  ground  of  citizenship,  and  failure  of  others  to  join  was 
sought  to  be  obviated  by  rearrangement  of  parties  according  to  alleged 
adverse  interests,  but  such  rearrangement  did  not  extend  to  all  defendants, 
defect  of  misjoinder  was  fatal;  Fife  v.  Whittell,  102  Fed.  539,  right  of 
removal  must  appear  either  in  record  in  State  court  or  in  petition  for  re- 
moval; Thompson  v.  Sdlithem  |ly.,  130  N.  C.  142,  41  S.  E.  10,  refusing 
removal  when  x)etition  does  not  specifically  allege  (hat  corporation  is  non- 
resident; Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149,  31  Pac.  990,  uphold- 
ing territorial  court's  jurisdiction  over  suit,  though  petition  incorrectly 
described  court  as  Federal  court;  dissenting  opinion  in  Matter  of  Moore, 
209  U.  S.  609,  14  Ann.  Gas.  1164,  52  L.  Ed.  912,  28  Sup.  Ct.  706,  majority  . 
holding  either  party  could  waive  objections  that  case  was  not  brought  in 
particular  Federal  court  required  by  statute;  dissenting  opinion  in  Giles  v. 
Harris,  189  U.  S-  501,  47  L.  Ed.  918,  23  Sup.  Ct.  646,  majority  denying  Cir- 
cuit  Court's  jurisdiction  to  compel  board  of  registers  to  enroll  negroes; 
Commissioners  v.  Thompson,  18  Ala.  697,  applying  the  doctrine  in  holding 
commissioners'  court  to  be  inferior,  and  that  its  jurisdiction  of  proceedings 
for  establishment  of  road  must  affirmatively  appear;  Wright  v.  Marsh,  2 
G.  Green,  103,  holding  Iowa  territorial  District  Courts  not  inferior  but 
limited ;  tiowry  v.  Erwin,  6  Rob.  (La.)  206,  39  Am.  Dec.  566,  holding  juris- 
diction of  Circuit  Court  to  render  judgment  may  be  collaterally  examined 
where  litigated  title  is  based  thereon;  Railroad  Co.  v.  Gray,  38  Mich.  468, 
and  Bagley  v.  Pridgeon,  42  Mich.  552,  4  N.  W.  289,  holding  municipal 
courts  to  be  of  limited  jurisdiction,  and  that  it  must  affirmatively  appear; 
Reed  v.  Vaughn,  10  Mo.  448,  holding  that  bankruptcy  discharge  in  District 
of  Columbia  Federal  court  will  be  presumed  to  have  been  duly  granted; 
Blair  v.  West  etc.  Co.,  7  N^b.  164,  holding  that  in  petition  for  removal 
to  Federal  court.  State  court  has  right  to  examine  into  allegations  as  to 
diverse  citizenship;  State  v.  Scott,  9  N.  J.  L.  20,  applying  principle  in  set- 
ting aside  return  of  road  surveyors,  since  it  appeared  that  they  did  not 
meet  at  place  designated;  similarly  because  they  were  not  all  personally 
notified  of  the  meeting,  as  required ;  State  v.  Van  Geison,  15  N.  J.  L.  341, 
under  statute  omission  to  give  each  road  surveyor  personal  notice  of  time 
and  place  of  meeting  vitiates  proceedings ;  Den  v.  Hammel,  18  N.  J.  L.  80, 
holding  Orphans'  Court  not  limited  or  inferior;  Princeton  v.  Overseers, 
23  N".  J.  L.  173,  holding  that  proceedings  for  removal  of  paupers  must  be 
strictly  pursued  and  jurisdiction  appear;  Van  Doren  v.  Horton,  25  N.  J.  L. 
208,  requiring  that  jurisdictional  facts  appear  in  record  of  case  before 
justice  of  peace  and  when  so  appearing  that  judgment  was  conclusive  in  a 
suit  brought  thereon;  Graham  v.  Whitely,  26  N.  J.  L.  262,  applying  prin- 
eiple  by  analogy^  to  proof  of  due  execution  of  deed  in  another  State ;  Frees 


4  Dall.  8-U  NOTES  ON  U.  S.  REPORTS.  90 

V.  Ford,  6  N.  Y.  178,  and  Gilbert  v.  York,  111  N.  Y.  548,  19  N.  E.  270, 
holding  County  Courts  in  New  York  limited;  Johns  v.  Marion  Co.,  4  Or* 
51,  holding  proceedings  in  County  Courts  for  laying  out  of  roads  to  be 
exercise  of  limited  jurisdiction  for  which  jurisdictional  facts  must  appear; 
Duffield  V.  Smith,  3  Serg.  &  R.  599,  holding  a  >court-martial  special  and 
limited  and  that  one  who  has  pleaded  guilty  before  it  may  afterward  con- 
test its  jurisdiction;  Thompson  v.  Lyle,  3  Watts  &  S.  168,  holding  Federal 
District  Court  limited  but  not  inferior,  and  the  order  of  a  judge  thereof 
sufficient  justification  for  the  seizure  of  a  vessel;  dissf^nting  opinion  in 
McNutt  V.  Bland,  2  How.  20,  11  L.  Ed.  163,  majority  upholding  Federal 
jurisdiction  over  suit  on  sheriff's  bond  by  nonresident;  Ludington  v.  The 
Nucleus,  15  Fed.  Cas.  1095,  holding  contracts  for  materials  furnished  at 
vessel's  home  port  not  within  statute  of  1845,  extending  admiralty  jurisdic- 
tion of  District  Court;  United  States  v.  New  Bedford  Br.,  1  Wood.  &  M. 
406,  Fed.  Cas.  15,867 ,  Wyman  v.  Campbell,  6  Port.  244,  31  Am.  Dec.  691 , 
Harrison  v.  Hadley,  2  Dill.  234,  Fed.  Cas.  6137 ,  Ex  parte  Law,  35  Ga.  289, 
15  Fed.  Cas.  5,  and  dissenting  opinion  in  Bierbower  v.  Miller,  30  Neb. 
.181,  47  N.  W.  2,  all  arguendo. 

Inferior  Federal  coorte  derive  their '  judicial  power  ftotti  Congress^  not 
directly  from  Constitiition. 

Approved  in  Stevenson  v.  Fain,  195  U.  S.  167,  49  L.  Ed.  143,  25  Sup.  Ct. 
6,  Circuit  Court  of  Appeal  decisions  in  controversy  between  citizens  of 
different  states  is  final,  though  parties  claimed  title  to  property  in  contro- 
versy under  grants  from  different  states;  Sheldon  v.  Sill,  8  How.  449,  12 
L.  £d.  1151,  applying  doctrine  in  sustaining  the  constitutionality  of  statute 
restricting  Federal  jurisdiction  o^  suits  by  assignee  of  chose  in  action  to 
cases  where  original  parties  were  of  different  States ;  dissenting  opinion  in 
McNutt  V.  Bland,  2  How.  27,  11  L.  Ed.  166,  arguing  against  Federal  juris- 
diction of  suit  for  use  of  citizens  of  one  State  brought  by  the  Governor 
against  citizens  of  another;  In  re  Barry,  136  U.  S.  609,  615,  34  L.  Ed.  508, 
509,  42  Fed.  122,  126,  Fed.  Cas.  1059,  denying  common-law  jurisdiction  in 
Circuit  Courts;  In  re  Sewing  Machine  Cos.,  18  Wall.  577,  21  L.  Ed.  919, 
denying  the  right  under  the  statute  to  remove  a  case  to  Circuit  Court  where 
only  two  of  three  defendants  are  of  different  State  from  plaintiff;  United 
States  V.  New  Bedford  Br.,  1  Wood.  &  M.  431,  432,  435,  438,  442,  455,  492, 
Fed.  Cas.  15,867,  denying  Federal  jurisdiction  to  indict  for  obstructing 
navigable  waters,  in  absence  of  statute;  North  Carolina  v.  Trustees,  1 
Hughes,  137,  Fed.  Cas.  10,318,  5  Natl.  Bank,  Reg.  470,  65  N.  C.  718,  holding 
that  Federal  Circuit  Court  has  not  jurisdiction  of  suit  by  State  against 
its  own  citizens ;  In  re  Cilley,  58  Fed.  978,  holding  probate  proceedings  not 
removable  to  Federal  court  under  judiciary- ^ct ;  Harrison  v.  Hadley,  2  Dill, 
234,  Fed.  Cas.  6137,  denying  Federal  jurisdiction  of  contested  election  for 
State  office ;  In  re  McDonald,  16  Fed.  Cas.  18,  affirming  Federal  jurisdiction 
in  habeas  corpus  matter;  Roberts  v.  Knight,  7  Allen,  451,  denying  Federal 
jurisdiction  of  suit  between  two  aliens. 

Miscellaneous.  Cited  in  Maskall  v.  Maskall,  3  Sneed,  209,  as  holding 
that  appeal  suspends  or  makes  void  judgment  appealed  from,  and  appeal 
is  same  suit  in  different  forum. 


91  NOTES  ON  U.  S.  REPORTS.  4  Dall.  12-20 

4  DalL  12-14,  1  L.  Ed.  720,  MOSSMAN  v.  HXGOINSON. 

Jndlclaiy  act  of  1789  does  not  Include  suit  between  aliens  but  only  between 
alien  and  dtlzen,  and  facts  of  dtizensbip  must  afflrmatiyely  appear. 

Approved  in  I^high  Valley  Coal  Co.  v.  Yensarage,  218  Fed.  554,  134 
C.  C.  A.  275,  sustaining  jurisdiction  where  citizenship  of  defendant  ap- 
peared on  face  of  pleadings,  though  denied,  when  defendant  pleaded  to 
merits;  Stuart  v.  Easton,  166  U.  S.  47,  39  L.  Ed.  341,  15  Sup.  Ct.  268,  hold- 
ing averments  insufficient;  Cissel  v.  McDonald,  16  Blatchf.  151,  Fed.  Cas. 
2729,  denying  Federal  jurisdiction  of  suit  between  alien  and  citizen  of  Dis- 
trict of  Columbia;  Hinckley  v.  Byrne,  Deady,  227,  Fed.  Cas.  6510,  aflSrming 
jurisdiction  between  citizen  plaintiff  and  alien  defendant ;  Pooley  v.  Luco, 
72  Fed.  563,  holding  fact  that  lands  in  dispute  were  within  jurisdiction  of 
Circuit  Court  gave  it  no  jurisdiction  where  parties  were  all  aliens;  Orosco 
V.  Gagliardoy  22  Cal.  85,  refusing  to  grant  removal  to  Federal  court  where 
both  parties  were  aliens;  Florence  v.  Grover,  110  Mass.  81,  denying  re- 
moval where  only  some  defendants  were  of  different  State ;  Hemdon  v.  In- 
sorance  Co.,  107  N.  C.  195,  12  S.  E.  242,  holding  allegations  of  citizenship 
insufficient  and  denying  removal;  dissenting  opinions  in  McNutt  v.  Bland, 
2  How.  21,  11  L.  Ed.  164,  and  Marshall  v.  Railroad,  16  How.  340,  14  L.  Ed. 
964,  aiding  against  Federal  jurisdiction  in  those  cases.  Cited. generally 
in  United  States  v.  Jarvis,  3  Wood.  &  M.  224,  Fed.  Cas.  15,469,  Commis- 
sioners V.  Thompson,  18  Ala.  697,  Clarey  v.  Marshall,  4  Dana,  97. 

Distinguished  in  Texas  v.  Lewis,  12  Fed.  3,  14  Fed.  67,  holding  Congress 
may  eonfer  upon  Circuit  Court  jurisdiction  of  suit  by  State  against  an 
alien. 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  R.  A.  839. 

Writ  of  error  regulaily  tested,  but  witb  return  day  left  blank,  may  be 
amoided  by  Inserting  return  day. 

Cited  in  Walton  v.  Marietta  Co.,  157  U.  S.  345,  89  L.  Ed.  726,  15  Sup. 
Ct.  627,  allowing  an  amendment  by  substitution  of  one  person  as  adminis- 
trator and  plaintiff  in  error  in  place  of  another ;  Commissioners  v.  Atlantic 
etc.  R.  R.,  3  N.'M.  355  (438),  9  Pac.  522,  holding  teste  may  be  amended 
and  return  day  inserted;  Hillebrant  v.  Brewer,  5  Tex.  568,  holding  it  un- 
necessary in  the  writ  to  give  accurately  the  date  of  the  judgment.  Cited 
generally  as  to  liberality  in  allowing  amendments,  in  Buchanan  v.  Trotter, 
4  Fed.  Cas.  539. 

Right  to  amend  jurisdictional  writ  made  returnable  at  unauthorized 
time.    Note,  Ann.  Gas.  1913A,  556. 

4  Dan.  14r-20,  1  L.  Ed.  721,  COOPEB  v.  TELFAIR. 

C^eorgia  act  of  attainder  and  confiscation  for  treason  is  Talid. 

« 

Followed  in  Thompson  v.  Carr,  5  N.  H.  515,  sustaining  similar  act; 
Hunt  V.  McMahaUi  5  Ohio^  135|  upholding  occupying  claimant  law. 


4  Dall.  S-U  NOTES  ON  U.  S.  REPORTS*  90 

V.  Ford,  6  N.  T.  178,  and  Gilbert  v.  York,  111  N.  Y.  548,  19  N.  E.  270, 
holding  County  Courts  in  New  York  limited;  Johns  v.  Marion  Co.,  4  Or. 
51,  holding  proceedings  in  County  Courts  for  laying  out  of  roads  to  be 
exercise  of  limited  jurisdiction  for  which  jurisdictional  facts  must  appear; 
Duffield  V.  Smith,  3  Serg.  &  R.  599,  holding  a  court-martial  special  and 
limited  and  that  one  who  has  pleaded  guilty  before  it  may  afterward  con- 
test its  jurisdiction;  Thompson  v.  Lyle,  3  Watts  &  S.  168,  holding  Federal 
District  Court  limited  but  not  inferior,  and  the  order  of  a  judge  thereof 
sufficient  justification  for  the  seizure  of  a  vessel;  dissenting  opinion  in 
McNutt  V.  Bland,  2  How.  20,  11  L.  Ed.  163,  majority  upholding  Federal 
jurisdiction  over  suit  on  sheriff's  bond  by  nonresident;  Ludington  v.  The 
Nucleus,  15  Fed.  Cas.  1095,  holding  contracts  for  materials  furnished  at 
vessel's  home  port  not  within  statute  of  1845,  extending  admiralty  jurisdic- 
tion of  District  Court;  United  States  v.  New  Bedford  Br.,  1  Wood.  &  M. 
406,  Fed.  Cas.  15,867 ,  Wyman  v.  Campbell,  6  Port.  244,  31  Am.  Dec.  691 , 
Harrison  v.  Hadley,  2  Dill.  234,  Fed.  Cas.  6137,  Ex  parte  Law,  35  Ga.  289, 
15  Fed.  Cas.  5,  and  dissenting  opinion  in  Bierbower  v.  Miller,  30  Neb. 
.183,  47  N.  W.  2,  all  arguendo. 

Inferior  Federal  courtB  derive  their '  Judicial  power  from  Oongnas,  not 
directly  from  Oonstitatlon. 

Approved  in  Stevenson  v.  Fain,  195  U.  S.  167,  49  L.  Ed.  143,  25  Sup.  Ct. 
6,  Circuit  Court  of  Appeal  decisions  in  controversy  between  citizens  of 
different  states  is  final,  though  parties  claimed  title  to  property  in  contro- 
versy under  grants  from  different  states;  Sheldon  v.  Sill,  8  How.  449,  12 
L.  Ed.  1151,  applying  doctrine  in  sustaining  the  constitutionality  of  statute 
restricting  Federal  jurisdiction  o^  suits  by  assignee  of  chose  in  action  to 
cases  where  original  parties  were  of  different  States ;  dissenting  opinion  in 
McNutt  V.  Bland,  2  How.  27,  11  L.  Ed.  166,  arguing  against  Federal  juris- 
diction of  suit  for  use  of  citizens  of  one  State  brought  by  the  Governor 
against  citizens  of  another;  In  re  Barry,  136  U.  S.  609,  615,  84  L.  Ed.  508, 
509,  42  Fed.  122,  126,  Fed.  Cas.  1059,  denying  common-law  jurisdiction  in 
Circuit  Courts;  In  re  Sewing  Machine  Cos.,  18  Wall.  577,  21  L.  Ed.  919, 
denying  the  right  under  the  statute  to  remove  a  case  to  Circuit  Court  where 
only  two  of  three  defendants  are  of  different  State  from  plaintiff;  United 
States  V.  New  Bedford  Br.,  1  Wood.  &  M.  431,  432,  435,  438,  442,  455,  492, 
Fed.  Cas.  15,867,  denying  Federal  jurisdiction  to  indict  for  obstructing 
navigable  waters,  in  absence  of  statute;  North  Carolina  v.  Trustees,  1 
Hughes,  137,  Fed.  Cas.  10,318,  5  Natl.  Bank,  Reg.  470,  65  N.  C.  718,  holding 
that  Federal  Circuit  Court  has  not  jurisdiction  of  suit  by  State  against 
its  own  citizens ;  In  re  Cilley,  58  Fed.  978,  holding  probate  proceedings  not 
removable  to  Federal  court  under  judiciary ^act ;  Harrison  v.  Hadley,  2  Dill. 
234,  Fed.  Cas.  6137,  denying  Federal  jurisdiction  of  contested  election  for 
State  office ;  In  re  McDonald,  16  Fed.  Cas.  18,  affirming  Federal  jurisdiction 
in  habeas  corpus  matter;  Roberts  v.  Knight,  7  Allen,  451,  denying  Federal 
jurisdiction  of  suit  between  two  aliens. 

Miscellaneous.  Cited  in  Maskali  v.  Maskail,  3  Sneed,  209,  as  holding 
that  appeal  suspends  or  makes  void  judgment  appealed  from,  and  appeal 
is  same  suit  in  different  forum. 


91  NOTES  ON  U.  S.  REPORTS.  4  Dall.  12-20 

4  DalL  12-14,  1  Iiu  Bd.  720,  MOBSMAN  ▼.  HXOGINSOK. 

Judiciary  act  of  17)S9  does  not  include  suit  between  aliens  but  only  between 
aUen  and  citizen,  and  facts  of  citizenship  must  aflixmatively  appear. 

Approved  in  I^high  Valley  Coal  Co.  v.  Yensarage,  218  Fed.  554,  134 
C  C-  A.  276,  sustaining  jurisdietion  where  citizenship  of  defendant  ap- 
peared on  face  of  pleadings,  though  denied,  when  defendant  pleaded  to 
merits ;  Stuart  v.  Easton,  156  U.  S.  47,  89  L.  Ed.  841,  15  Sup.  Ct.  268,  hold- 
ing averments  insufficient;  Cissel  v.  McDonald,  16  Blatchf.  151,  Fed.  Cas. 
2729,  den3ring  Federal  jurisdiction  of  suit  between  alien  and  citizen  of  Dis- 
trict of  Columbia ;  Hinckley  v.  Byrne,  Deady,  227,  Fed.  Cas.  6510,  afl^rming 
jurisdiction  between  citizen  plaintiff  and  alien  defendant;  Pooley  v.  Luco, 
72  Fed.  563,  holding  fact  that  lands  in  dispute  were  within  jurisdiction  of 
Circuit  Court  gave  it  no  jurisdiction  where  parties  were  all  aliens ;  Orosco 
▼.  Gagliardo,  22  Cal.  85,  refusing  to  grant  removal  to  Federal  court  where 
both  parties  were  aliens;  Florence  v.  Grover,  110  Mass.  81,  denying  re- 
moval where  only  some  defendants  were  of  different  State ;  Hemdon  v.  In- 
surance Co.,  107  N.  C.  195,  12  S.  E.  242,  holding  allegations  of  citizenship 
insufficient  and  denying  removal;  dissenting  opinions  in  McNutt  v.  Bland, 
2  How.  21, 11  L.  Ed.  164,  and  Marshall  v.  Railroad,  16  How.  340,  14  L.  Ed. 
964,  arguing  against  Federal  jurisdiction  in  those  cases.  Cited. generally 
in  United  States  v.  Jarvis,  3  Wood.  &  M.  224,  Fed.  Cas.  15,469,  Commis- 
sioners V.  Thompson,  18  Ala.  697,  Clarey  v.  Marshall,  4  Dana,  97. 

Distingaished  in  Texas  v.  Lewis,  12  Fed.  3,  14  Fed.  67,  holding  Congress 
may  confer  upon  Circuit  Court  jurisdiction  of  suit  by  State  against  an 
alien. 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  R.  A.  839. 

Writ  of  error  regulaxly  tested,  but  with  return  day  left  blank,  may  be 
amended  by  Inserting  return  day. 

Cited  in  Walton  v.  Marietta  Co.,  157  U.  S.  345,  89  L.  Ed.  726,  15,  Sup. 
Ct.  627,  allowing  an  amendment  by  substitution  of  one  person  as  adminis- 
trator and  plaintiff  in  error  in  place  of  another;  Commissioners  v.  Atlantic 
etc.  R.  R.,  3  N.'M.  355  (438),  9  Pac.  522,  holding  teste  may  be  amended 
and  return  day  inserted;  Hillebrant  v.  Brewer,  5  Tex.  568,  holding  it  un- 
necessary in  the  writ  to  give  accurately  the  date  of  the  judgment.  Cited 
generally  as  to  liberaiity  in  allowing  amendments,  in  Buchanan  v.  Trotter, 
4  Fed.  Cas.  539. 

Right  to  amend  jurisdictional  writ  made  returnable  at  unauthorized 
time.    Note,  Ann.  Oas.  1913A,  556. 

4  DaJl.  14-20,  IK  Ed.  721,  OOOPEB  ▼.  TEU'AIR. 

Georgia  act  of  attainder  and  confiscation  for  treason  is  yalid. 

Followed  in  Thompson  v.  Carr,  5  N.  H.  515,  sustaining  similar  act; 
Hunt  V.  McMahan,  5  Ohio,  135,  upholding  occupying  claimant  law. 


4  Drill.  14-20  NOTES  ON  U.  S.  REPORTS.  92 

Judiciary  may  declare  leglslatlTe  enactments  void,  but  they  are  presumed 
▼alld  and  reimgnancy  must  be  clear. 

Approved  in  Cheyney  v.  Smith,  3  Ariz.  149,  23  Pac.  682,  holding  United 
States  Rev.  Stats.,  §  1852,  as  amended  in  1880,  providing  that  sessions  of 
territorial  legislatures  shall  be  limited  to  sixty  days'  duration  means  sixty 
legislative  working  days  and  not  sixty  consecutive  days;  State  v.  Lay,  86 
Conn.  145,  84  Atl.  523,  upholding  act  requiring  records  of  information 
agency  to  be  open  to  inspection  of  Bureau  of  Labor  Statistics;  Young  v. 
Salt  Lake  City,  24  Utah,  333,  67  Pac.  1068,  upholding  statute  changing 
municipal  boundaries;  Morrison  v.  Springer,  15  Iowa,  348,  and  Lehman  v. 
McBride,  15  Ohio  St.  591,  upholding  laws  authorizing  citizens  of  State,  in 
military  service  elsewhere,  to  vote,  confessedly  upon  this  ground;  Osburn 
v.  Staley,  5  W.  Va.  94,  13  Am.  Rep.  647,  according  it  controlling  weight; 
Erie  v.  Casey,  26  Pa.  St.  317,  upholding  law  forfeiting  railroad  charter  for 
misuser  and  declaring  the  proof  of  misuser  introduced,  to  be  fortified  by 
this  presumption.  The  following  citing  cases  lay  down  tHe  rule  and  apply 
it  in  upholding  various  statutes :  United  States  v.  Rhodes,  1  Abb.  52,  Fed. 
Cas.  16,151,  upholding  civil  rights  bill ;  Cotton  v.  Commissioners,  6  Fla. 
613,  internal  improvement  act;  Beall  v.  Bealls,  8  Ga.  218,  Carey  v.  Giles, 
9  Ga.  259^  and  Pleuler  v.  State,  11  Neb.  555, 10  N.  W.  481,  upholding  liquor 
law;  Rich  v.  Flanders,  39  N.  H.  312,  sustaining  statute  permitting  inter- 
ested parties  to  testify;  George  v.  Concord,  45  N.  H.  437,  upholding  legal 
tender  act ;  Simpson  v.  City  Bank,  56  N.  H.  469,  22  Am.  Rep.  493,  statute 
respecting  savings  bank  deposits;  Bloodgood  v.  Railroad,  18  Wend.  50,  51, 
31  Am.  Dec.  347,  348,  sustaining  condemnation  act  for  railroad  com- 
panies; Delafield  v.  State,  26  Wend.  217,  upholding  judiciary  act;  Cin- 
cinnati etc.  V.  Commissioners,  1  Ohio  St.  83,  sustaining  act  authorizing 
municipal  aid  of  railroads;  Fleischner  v.  Chadwick,  5  Or.  154,  sustaining 
a  repealing  act;  Sharpless  v.  Mayor,  21  Pa.  St.  164,  59  Am.  Dec.  769,  up- 
holding act  authorizing  municipal  aid  of  railroads ;  Louisville  etc.  v.  County 
Court,  1  Sneed,  670,  62  Am.  Dec.  438,  sustaining  such  a  statute  with  refer- 
endum clause;  Smith  v.  O'Dell,  1  Pinn.  455,  upholding  act  creating  Su- 
preme Court  commissioners;  United  States  v.  Hall,  26  Fed.  Cas.  77,  up- 
holding act  of  1825,  respecting  private  transportation  of  mails.  Cited  in 
following  dissenting  opinions  arguing  against  decisions  declaring  statutes 
invalid:  Aycock  v.  Martin,  37  Ga.  169,  92  Am.  Dec.  68;  Koehler  v.  Hill,  60 
Iowa,  588,  14  N.  W.  761 ;  Jacobs  v.  Smallwood,  63  N.  C.  126 ;  In  re  North 
Milwaukee,  93  Wis.  629,  67  N.  W.  1037.  Cited  in  People  v.  Collins,  3  Mich. 
404,  arguing  in  support  of  a  liquor  law  in  which  the  court  was  evenly  di- 
vided :  Murphy  etc.  Test  Oath  Cases,  41  Mo.  382,  criticising  Supreme  Court 
decision  annulling  test  oath  acts;  State  v.  Fry,  4  Mo.  177,  arguing  in 
favor  of  statute  granting  divorce,  court  being  equally  divided;  State  v.. 
Doyle,  40  Wis.  191,  22  Am.  Rep.  697,  criticising  case  which  went  out  of  its 
way  to  pronounce  act  invalid;  United  States  v.  Mackenzie,  30  Fed.  Cas. 
1162,  affirming  rule  in  chaise  to  jury.  Cited  simply  to  point  that  courts 
have  power  to  declare  a  law  void,  in  Bank  v.  State,  12  Ga.  498. 


93  WILLIAMSON  v.  KINCAID.  4DaU.20-21 

LeglaUtive  power,  when  undeflned,  inclndes  as  well  judicial  and  exeeutlirt 
attxibntee. 

Cited  in  Mayor  v.  State,  15  Md.  479,  upholding  statute  providing  for  ap- 
pN>intment  of  Baltimore  police  commissioners  by  State  legislature. 

Miscellaneous.  The  principal  case  is  also  cited  to  the  point  that  in  con- 
struction of  statutes  intention  of  the  legislature  must  prevail,  although  it 
seems  not  to  have  decided  that  proposition:  United  States  v.  Freeman,  3 
How.  565,  11  L.  Ed.  728;  Beals  v.  Hale,  4  How.  51,  11  L.  Ed.  872;  State  v. 
Commissioners,  20  Fla.  432;  Akin  v.  Freeman,  49  Ga.  54;  also  to  the  point 
that  ex  post  facto  applies  to  criminal  laws  only,  which  it  does  not  decide, 
Le  Breton  v.  Morgan,  4  Mart.  (N.  S.)  142;  and  again  that  a  statute  in- 
fringing fundamental  rights  is  void,  Kelly  v.  Pittsburgh,  85  Pa.  St.  186, 
27  Am.  Rep.  642 ;  Willow  River  Club  v.  Wade,  100  Wis.  94,  42  L.  B.  A.  S05, 
76  N.  W.  274,  to  point  that  title  to  public  lands  at  outbreak  of  Revolution 
devolved  on  States. 

4  DaU.  20-21,  1  L.  Ed.  723,  WILLIAMSON  ▼.  KJNOAIB. 

Whether  the  value  of  property  in  dispute  solllces  to  sustain  a  writ  of  error 
may  be  ascertained  by  affidavits  to  be  taken  on  ten  days'  notice,  the  writ  mean- 
time is  not  a  supersedeas. 

Approved  in  McLaughlin  v.  Darlington,  6  Kan.  App.  216,  60  Pac,  509, 
and  Course  v.  Stead,  4  DalL  25,  1  L.  Ed.  724,  both  following  rule ;  Ringgold's 
Case,  1  Bland  Ch.  24,  approved  as  proper  in  chancery  appeals  in  Mary- 
land; Harris  v.  Hopson,  5  Tex.  533,  holding  that  State  Supreme  Court 
mi^ht  receive  affidavits  to  prove  that  an  appeal  bond  was  filed  too  late  and 
fraudulently  antedated ;  Austin  v.  Bahn,  87  Tex.  683,  29  S.  W.  646,  order- 
ing affidavits  of  value  to  determine  right  of  appeal  where  value  was  not 
disclosed  by  record;  Davie  v.  Heyward,  33  Fed.  94,  holding  that  it  is 
for  Supreme  and  not  Circuit  Court  to  pass  upon  question  of  value  on 
application  for  writ  of  error;  Elgin  v.  Marshall,  106  U.  S.  580,  27  L.  Ed. 
250,  1  Sup.  Ct.  487,  holding  that  where  record  showed  judgment  for 
less  than ,  necessary  amount,  writ  would  not  lie  even  though  ultimate 
amount  in  dispute  was  greater;  Harman  v.  Lynchburg,  33  Gratt.  40,  dis- 
cussing appeals  as  determined  by  value  in  dispute. 

Distinguished  in  Richmond  v.  Milwaukee,  21  How.  392,  16  L.  Ed.  72,  and 
Red  River  Cattle  Co.  v.  Needham,  137  U.  S.  634,  84  L.  Ed.  800,  11  Sup. 
Ct.  209,  holding  that  where  record  contained  allegations  of  value  insuffi- 
cient to  sustain  writ,  affidavits  would  not  be  received  to  enhance  or  vary  it. 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  B.  A.  866. 

.( 
Miscellaneous.    Cited  erroneously  on  question  of  estoppel  by  award  in 

Shepard  v.  Ryers,  15  Johns.  503  i  Crabtree  v.  Green,  8  Ga.  19. 


4  Dall.  21-27  NOTES  ON  U.  S.  REPORTS.  94 

4  DaU.  21,  1  L.  £d.  724,  BLAIR  ▼.  MILI£B. 

Writ  of  error  not  returned  at  term  to  which  it  is  returnable  is  nullity. 

Approved  in  Grisby  v.  Purcell,  99  U.  S.  506,  507,  25  L.  Ed.  354,  dismissing 
appeal  for  failure  to  return  writ  and  file  transcript;  Haden  y.  United 
States,  4  Port.  395,  where  judgment  below  was  affirmed  on  this  ground  and 
motion  to  set  it  aside  denied;  Carleton  v.  Goodwin,  41  Ala.  155,  affirming 
judgment  on  this  ground;  Alexander  v.  Nelson,  42  Ala.  466,  where  trial 
court  proceeded  in  probate  matter  thus  appealed  from,  the  appeal  having 
lapsed,  and  this  action  was  sustained. 

Distinguished  in  Tardy  v.  Murry,  17  Ala.  586,  and  held  inapplicable 
where  a  second  writ  is  pending,  although  the  first  has  lapsed;  Wood  v. 
Lide,  4  Or.  181,  2  L.  Ed.  588,  allowing  return  of  writ  after  return  day  if 
served  before. 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  B.  A.  851.  « 

4  Dall.  22,  1  Ifc  Ed.  724,  BtJTHEBFOBD  T.  FISHEB. 

Writ  of  error  will  lie  only  ftom  final  judirment. 

Followed  in  United  States  v.  Girault,  11  How.  32,  13  L.  Ed.  592,^  dismiss- 
ing appeal  where  suit  on  bond  and  note  had  not  been  disposed  of  as  to  all 
parties  when  appeal  was  taken ;  Luxton  v.  North  etc.,  147  U.  S.  341,  37  L. 
Ed.  196,  13  Sup.  Ct.  358,  holding  order  of  Circuit  Court  appointing  com- 
missioners to  assess  damages  upon  condemnation  proceedings  not  final 
within  rule;  Blakeley  v.  Fish,  Hempst.  12,  Fed.  Gas.  18,240,  dismissing  ap- 
peal from  order  overruling  demurrer;  Eslava  v.  Rigland,  3  AJa.  364,  hold- 
ing order  quashing  attachment  not  final  or  appealable.  Cited  in  Ringgold's 
Case,  1  Bland  Ch.  17,  discussing  appeals  generally. 

Miscellaneous.     Cited  erroneously  in  Hillebrant  v.  Brewer,  5  Tex.  568. 

4  DaU.  22,  1  L.  Ed.  724,  BLAINE  ▼.  SHIP  OHAKLES  OARTEB. 

Appeal  Arom  Olrcult  Oourt  must  invariably  be  by  writ  of  error. 

Cited  in  United  States  v.  Wonson,  1  Gall.  8,  28,  Fed.  Cas.  16,750, 
applying  rule  in  debt  for  penalty  tried  in  District  Court. 

4  DaU.  22-27,  1  L.  Ed.  724,  OOUBSE  V.  STEAD. 

Jurisdiction  dependent  upon  diverse  citizenship  must  be  supported  by  aUe- 
gation  by  citizensldp  of  aU  parties,  including  party  introduced  by  supplemental 
biU. 

Cited  in  Blair  v.  West  Co.,  7  Neb.  154,  holding  allegations  of  diverse 
citizenship  in  petition  for  removal,  denied  by  answer,  may  be  tried  by  State 
court;  dissenting  opinion  in  McNutt  v.  Bland,  2  How.  21,  11  L.  Ed.  164, 
arguing  against  Federal  jurisdiction  of  suit  brought  for  benefit  of  citizens 
of  one  State  by  Governor  against  citizens  of  another;  dissenting  opinion  in 
Gwin  V.  Breedlove,  2  How.  41,  11  L.  Ed.  172,  majority  holding  that  motion 


95  PRIESTMAN  v.  UNITED  STATES.  4  Dall.  28-34 

by  plaintiff  for  judgment  against  marshal  who  held  certain  execution 
moneys  collected  upon  judgment  in  plaintiff's  favor  need  not  aver  marshal's 
citizenship  as  it  was  but  incident  to  a  suit  in  which  citizenship  of  the  prin- 
cipal parties  was  averred;  dissenting  opinion  in  Marshall  v.  Baltimore,  16 
How.  342,  14  L.  Ed.  965,  arguing  that  allegation  that  corporation  was 
created  by  legislature  of  Maryland  was  insufficient. 

Approved  in  Schuyler  N.  Bank  v.  Gadsden,  179  U.  S.  681,  45  L.  Ed.  884, 
21  Sup.  Ct.  918 ,  Southern  R.  Co.  v.  Postal  Tel.  Co^  179  U.  S.  643,  45  L.  Ed. 
356,  21  Sup.  Ct.  250,  and  Southern  R.  Co.  v.  Postal  Tel.  Co.,  93  Fed.  396, 
all  following  rule. 

To  determine  wbether  matter  in  dUqnite  is  of  snfllcient  valus  to  authorise 
Witt  of  enor,  affidavits  of  value  may  be  'taken. 

Approved  in  McLaughlin  v.  Darlington,  6  Kan.  App.  216,  50  Pac.  509, 
following  rule;  Harman  v.  Lynchburg,  33  Gratt.  40,  discussing,  gener- 
ally, amount  in  dispute  as  determining  right  of  appeal. 

Distinguished  in  Red  etc.  v.  Needham,  137  U.  S.  634,  84  L.  Ed.  800,  11 
Sup.  Ct.  209,  holding  that  where  record  contained  allegations  of  value  in- 
sufficient to  sustain  the  writ,  affidavits  would  not  be  received  to  enhance 
or  vary  it ;  Richmond  v.  Milwaukee,  21  How.  392,  16  L.  Ed.  72,  where  affi- 
davits were  sought  and  refused  after  judgment  of  dismissal  for  want  of  the 
proper  showing  of  value. 

On  appeal  ftom  Oirenlt  Oonxt,  laws  of  any  8tat«i  may  be  read  without 
liavlng  1)een  proved  in  evidence. 

Distinguished  in  Hanley  v.  Donoghue,  116  U.  S.  6,  29  L.  Ed.  537,  6  Sup. 
Ct.  245,  holding  that  on  error  to  State  Supreme  Court  only  laws  of  that 
State  will  be  judicially  noticed. 

Proof  and  evidence  of  foreign  laws  and  their  effect.    Note,  113  Am. 
St  Rep.  873. 

Teste  of  writ  of  error  Is  amendable  of  coune,  and  name  of  district  may 
be  suivlled. 

Cited  in  Walton  v.  Marietta  Co.,  157  U.  S.  345,  346,  89  L.  Ed.  726,  727, 
15  Sup.  Ct.  627,  628,  holding  that  writ  in  name  of  one  person  as  admin- 
istrator may  be  amended  by  substitution  of  name  of  his  successor;  Com- 
missioners V.  Railroad,  3  N.  M.  355,  356  (438),  9  Pac.  522,  523,  follow- 
ing rule;  Ringgold's  Case,  1  Bland  Ch.  24,  general  discussion  of  chancery 
appeal  practice. 

4  DaU.  28-34,  1  L.  Ed.  727,  PBIESTAfAK  ▼.  X7NITBD  ftTATB& 

Under  act  of  1793,  foreign  goods  exceeding  eight  hundred  dollars  in  value, 
transported  without  permit  ftom  Maryland  acrow  Delaware  to  Pennsylvania, 
are  liable  to  forfeiture. 

Distinguished  as  to  form  of  the  information,  in  Cross  v.  United  States, 
1  Gall.  31,  Fed  Cas.  3434,  holding  information  for  such  offense  must  allege 
it  to  be  against  the  form  of  the  statute,  and  remarking  that  this  defect  in 
the  principal  case  was  not  brought  to  the  court^s  attention. 


4  Dall.  34-46  NOTES  ON  U.  S.  REPORTS.  96 

Bevenue  system  dioald  be  f altbfoUy  obeenred  and  strictly  executed. 

Cited  in  Lane  v.  Russell,  4  Cliff.  125,  Fed.  Cas.  8053,  construing  term 
"ribbons"  in  tariff  law;  Maus  v.  Railroad,  27  111.  86,  construing  State  reve- 
nue law.  • 

Courts  must  conform  to  letter  of  statute  wlien  ftee  from  ambiguity,  with- 
out ^peculating  as  to  supposed  intent.  % 

Approved  in  Union  Pac.  Ry.  Co.  v.  Karges,  169  Fed.  462,  construing  act 
of  1862  granting  lands  tb  Union  Pacific  Railroad ;  McKay  v.  Fair  Haven  & 
W.  R.  Co.,  75  Conn.  611,  54  Atl.  924,  construing  Pub.  Acts  1899,  chapter 
187,  page  1102,  relative  to  trial  dockets;  Farrell  v.  Dart,  26  Conn.  382,  con- 
struing statute  validating  certain  deeds;  Annan  v.  Houck,  4  Gill,  332,  45 
Am.  Dec.  136,  refusing  to  extend  statute  by  construction ;  Maxwell  v.  State, 
40  Md.  295,  refusing  to  obviate  consequences  of  a  palpable  mistake  in  a 
statute,  by  construction ;  Mayor  v.  Lord,  18  Wend.  139,  holding  statute  too 
plain  for  judicial  construction ;  Randall  v.  Railroad,  107  N.  C.  750,  12  S.  E. 
606,  declining  to  hold  thing  within  words  of  statute  to  be  without  its  mean- 
ing; Fisher  v.  Dabbs,  6  Yerg.  150,  collecting  rules  of  construction,  in  inter- 
preting a  law  respecting  procedure;  dissenting  opinion  in  Pennsylvania 
etc.  V.  Pittsburgh,  104  Pa.  553,  refuting  argument  drawn  from  a  supposed 
legislative  intent  not  expressed  in  words ;  dissenting  opinion  in  Buffham  v. 
Racine,  26  Wis.  464,  arguing  against  proposition  that  municipality  is  ex- 
cepted, by  implication,  from  statute  respecting  garnishment;  dissenting 
opinion  in  Hawaii  v.  Mankichi,  190  U.  S.  248,  47  L.  Ed.  1034,  23  Sup.  Ct. 
802,  construing  resolution  annexing  Hawaii. 

Tax  on  manufacturing  corporations.    Note,  64  L.  B.  A.  61. 

Miscellaneous.  Miscited  in  Chicago  etc.  R.  R.  v.  Ellson,  113  Mich.  37, 
71  N.  W.  326.  Cited  in  Union  etc.  Ry.  v.  Wyler,  158  U.  S.  296,  39  L.  Ed. 
990,  !I5  Sup.  Ct  882,  to  point  that  Federal  courts  judicially  notice  state 
laws. 

4  DaU.  84r-36,  1  U  Ed.  780,  TALBOT  ▼.  THE  AMEUA. 

American  recaptors .  are  entitled  to  salvage  for  rescuing  armed  neutral 
vessel  from  French  captors. 

Followed  in  Has  v.  Tingy,  4  Dall.  42,  1  L.  Ed.  733,  a  similar  case. 

Duty  of  conquering  with  respect  to  obligations  of  conquered  state. 
Note,  5  B.  R.^  0.  907. 

4  Dall.  37-46,  1  L.  Ed.  731,  BA8  ▼.  TINaT. 

War  is  external  contention  by  force  between  some  of  the  members  of  two 
nations,  authorized  by  legitimate  powers. 

Approved  in  Montoya  v.  United  States,  180  U.  S.  267,  45  L.  Ed.  524,  21 
Sup.  Ct.  360,  holding  hostile  Apaches  leaving  reservation  constitute  "band'' 
within  meaning  of  Indian  Depredation  Act. 

Congress  may  wage  general  or  limited  war. 

Cited  in  Metropolitan  Bank  v.  Van  Dyck,  27  N.  Y.  449,  in  observing  that 
power  to  declare  war  means  also  power  to  wage  it. 


NOTES 

ONTHB 


UNITED  STATES  REPORTS. 


I  CBANCH. 


1  Or.  1-45,  2  1^.  Ed.  15,  TAI.BOT  ▼.  SEEMAN. 

Salvage  ftom  vessel  saved  from  pirates  Is  comi>ensatloii  for  actual  services 
rendered  but  taking  must  be  lawful  and  service  must  be  meritorious. 

Approved  in  The  Job  H.  Jackson^  161  Fed.  1017j  holding  service  by  tugs 
towing  derelict  after  latter  towed  to  anchorage  by  another  .vessel  not  sal- 
vage service ;  Clarke  v.  Brig  Dodge  Healy,  4  Wash.  C.  C.  657,  Fed.  Cas.  2849, 
denying  right  to  salvage  where  it  did  not  appear  vessel  was  saved  by  libel- 
ant's instrumentality;  Davidson  v.  Sealskins,  2  Paine,  333,  Fed.  Cas.  3661, 
denying  salvage  because  taking  was  unlawful;  Steamboat  Narragansett, 
01c.  392,  Fed.  Cas.  10,020,  denying  salvage  where  effort  was  unsuccessful; 
Butterworth  v.  Washington,  4  Fed.  Cas.  926,  allowing  slight  salvage,  aid 
having  been  continuous  and  successful. 

Intent  with  whlcli  recapture  is  made  is  not  material  on  question  of  salvage. 

Approved  in  Le  Tigre,  3  Wash.  C.  C.  574,  Fed.  Cas.  8281,  where  seizure 
was  not  made  to  protect  or  benefit  the  owner. 

To  entitle  to  salvage  danger  of  property  saved  must  be  real  and  imminent; 
Imt  loss  need  not  be  inevitably  certain. 

Cited  in  Spencer  v.  Steamboat,  1  Bond,  121,  Fed.  Cas.  13,232,  holding 
danger,  to  life  not  an  essential  element ;  The  Spokane,  67  Fed.  256,  allow- 
ing salvage  under  facts  although  i)eril  but  slight;  Bark  Delphos,  1  Newb. 
419,  Fed.  C!as.  14,400,  discussing  various  considerations  which  go  to  fix 
amount  of  salvage;  Steamboat  Pontiac,  5  McLean,  365,  1  Newb.  135,  Fed. 
Cas.  8801,  steamboat  held  in  great  danger  from  ice  upon  river;  The  Conne- 
mara,  108  TJ.  S.  357,  27  L.  Ed.  763,  2  Sup.  Ct.  756,  awarding  salvage  to 
rescue  from  fire  although  the  danger  of  loss  was  relatively  slight;  The 
Senator,  1  Brown  Adm.  375,  Fed.  Cas.  12,664,  holding  danger  sufficient  to 
entitle  to  small  salvage;  Brooks  v.  Wm.  Penn,  2  Hughes,  148,  Fed.  Cas. 
1965,  remarking  that  salvage  is  to  be  encouraged  by  liberal  reward. 
1—7  (97) 


1  Cr.  1-45  NOTES  ON  U.  S.  REPORTS.  98 

Salvage  for  recapture  of  neutral  venel  armed  liy  Frencli  during  period  of 
limited  war. 

Approved  in  The  Panama,  176  U.  S.  546,  547,  44  L.  Ed.  581,  582,  20  Sup. 
Ct.  484,  holding  mail  ships  are  prizes  of  war;  Murray  v.  Charming  Betsey, 

2  Cr.  121,  2  L.  Ed.  227,  as  to  recapture  of  neutral  from  the  French ;  Will- 
iams V.  Suffolk  Ins.  Co.,  3  Sumn.  276,  Fed.  Cas.  17,738,  awarding  salvage  in 
similar  case  because  of  practice  of  Buenos  Ayres  government  similar  to 
French ;  United  States  v.  Wilder,  3  Sumn.  315,  Fed.  Cas.  16,694,  following 
rule;  Peck  v.  Randall,  1  J9hns.  177,  respecting  exceptional  rule  where  con- 
demnation imminent ;  Snowden  v.  Ins.  Co.,  3  Binn.  468,  471,  a  suit  for  insur- 
ance money  on  vessel ;  Clayton  v.  Ship  Harmony,  1  Pet.  Adm.  78,  Fed.  Cas. 
2871,  awarding  salvage  to  those  rescuing  vessel  captured  by  French. 

Foreign  laws  muat  be  proved  aa  facts. 

Approved  in  Yang  Tsze  Ins.  Assn.  v.  Fumess,  215  Fed.  866,  132  C.  C.  A. 
201,  refusing  to  take  judicial  notice  of  foreign  law  in  fixing  liability  of 
foreign  vessels  responsible  for  collision;  Jennings  v.  Smith,  99  Fed.  189, 
refusing  to  review  finding  of  referee  as  to  foreign  law;  Hanley  v.  Donog- 
hue,  116  U.  S.  4,  7,  29  L.  Ed.  536,  537,  6  Sup.  Ct.  244,  245,  holding  States 
of  Union  foreign  within  rule,  and  that  Supreme  Court  on  error  to  State 
court  notices  only  such  laws  as  it  does;  Liverpool  etc.  Co.  v.  Phoenix  Ins. 
Co.,  129  U.  S.  446,  82  L.  Ed.  794,  9  Sup.  Ct.  473,  declining  to  notice  Eng- 
lish law;  Brashear  v.  Williams,  10  Ala.  633,  holding  Choctaw  Indian  cus- 
tom and  law  as  to  descent  must  be  proved;  Brackett  v.  Norton,  4  Conn. 
521,  10  Am.  Dec.  181,  and  Dyer  v.  Smith,  12  Conn.  390,  holding  laws  of 
sister  State  foreign  and  must  be  proved,;  €)wen  v.  Boyle,  15  Me.  149,  32 
Am.  Dec.  145,  discussing  mode  of  proof  and  noting  the  exception  intro- 
duced by  the  leading  case;  Bowditch  v.  Soltyk,  99  Mass.  138,  where  proof 
was  testimony  of  foreign  jurists;  Ward  v.  Morrison,  25  Vt.  602,  holding 
that  if  foreign  law  was  claimed  to  be  different  from  domestic  it  must  be 
proved  so;  Allen  v.  Watson,  2  Hill  L.  320,  admitting  official  publication 
of  Georgia  law;  Henthorn  v.  Doe,  1  Blackf.  160,  .discussing  acts  of  Con- 
gress providing  mode  of  proof;  Ennis  v.  Smith,  14  How.  427,  14  L.  Ed. 
484,  discussing  modes  of  proof  and  holding  it  must  be  the  best  evidence 
obtainable;  The  Pawashick,  2  Low.  144,  147,  Fed.  Cas.  10,851,  applying 
rule  in  admiralty  and  discussing  mode  of  proof  of  English  laws ;  People  v. 
Lambert,  5  Mich.  361,  72  Am.  Dec.  51,  ruling  that  proof  of  sister  State  law 
may  be  proved  by  authenticated  copies;  Barrows  v.  Downs,  9  R.  I.  448, 
11  Am.  Rep.  285,  allowing  Spanish  lawyer  to  prove  Cuban  law;  Dundee 
Co.  V.  Cooper,  26  Fed.  669,  11  Sawy.  507,  permitting  witness  to  testify  that 
certain  volume  was  authoritative  copy  of  English  statutes ;  Beach  v.  Work- 
man, 20  N.  H.  383,  refusing  to  admit  Canadian  publication  in  proof  of 
English  statute ;  Dawson  v.  Peterson,  110  Mich.  433,  68  N.  W.  247,  admit- 
ting volume  of  Canadian  statute  proved  by  testimony  of  Canadian  solicitor. 
Cited  in  general  discussion  in  McCall  v.  United  States,  1  Dak.  312,  46  N.  W. 
610. 

Foreign  pnblic  laws  and  decrees  on  subject  of  international  ooncem, 
promulgated  by  tlie  United  States,  Judicially  noticed. 


99  TALBOT  v.  SEEMAN.  1  Cr.  1-45 

Approved  in  The  New  York,  175  U.  S.  196,  44  L.  Ed.  180,  20  Sup.  Ct.  70, 
holding  coarts  of  admiralty  take  judicial  notice  of  foreign  navigation 
lales;  East  Building  etc.  Assn.  v.  Williamson,  189  U.  S.  125,  47  L.  Ed.  739, 
23  Sup.  Ct.  529,  holding  courts  follow  decisions  of  their  own  State  in  con- 
struing statutes  of  sister  State;  Radcliff  v.  Unit.  Ins.  Co.,  7  Johns.  51, 
holding  diplomatic  correspondence  printed  by  government  , admissible; 
People  v.  Lambert,  5  Mich.  361,  72  Am.  Dec.  51,  discussing  modes  of  proof ; 
Barrows  v.  Downs,  9  R.  I.  448,  11  Am.  Rep.  285,  where  Spanish  lawyer  was 
allowed  to  testify  to  Cuban  partnership  law ;  Dundee  etc.  Co.  v.  Cooper,  26 
Fed.  669,  11  Sawy.  507,  McCall  v.  United  States,  1  Dak.  312,  46  N.  W. 
610,  and  Allen  v.  Blunt,  2  Wood.  &  M.  128,  Fed.  Cas.  217,  in  general  dis- 
cussion. 

Proof  and  evidence  of  foreign  laws  and  their  effect.    Note,  113  Am. 
St.  Rep.  874,  884. 

Admissibility  of  printed  copy  of  statutes  to  prove  law  of  another  juris- 
diction.   Note,  Ann.  Gas.  1916D,  857,  858. 

Oral  proof  of  foreign  laws.    Note,  25  L.  R.  A.  450,  451,  455,  456,  460, 
461. 

How  case  determiued  when  proper  foreign  law  not  proved.    Note,  67 
L.  R.  A.  83. 

anprane  Conn  wtUi  rwpect  to  facts  Is  llmlMl  to  statsment  In  lower  court 

Cited  in  Insurance  Co.  v.  Folsonv  18  Wall.  249,  21  L.  Ed.  237,  applying 
rule  in  reviewing  trial  of  fact  by  court  without  jury;  United  States  v. 
King,  7  How.  865,  12  L.  Ed.  948,  applying  rule. 

Legislation  founded  on  mlstaJsen  notice  of  what  is  law  does  not  change 
ictnal  state  of  law  as  to  pre-existing  cases. 

Approved  in  Blanchard  v.  Railroad,  31  Mich.  49,  18  Am.  Rep.  146,  argu- 
ing that  individuals  cannot  change  legal  effect  of  their  written  instru- 
ments; Van  Norman  v.  Jackson,  45  Mich.  210,  7  N.  W.  798,  holding  legis- 
lation assuming  existence  of  a  remedy  does  not  establish  it;  Rhoadea 
V.  Davis,  61  Mich.  311,  16  N,  W.  662,  holding  .that  empowering  statute 
does  not  necessarily  show  that  power  did  not  previously  exist;  dissenting 
opinion  in  Lott  v.  Lott,  146  Mich.  591,  8  L.  R.  A.  (N.  S.)  755,  109  N.  W. 
1130,  majority  holding  that  before  act  of  1877  wife  did  not  have  right  to 
bar  dower  by  separate  deed. 

Dnty  of  conquering  with  respect  to  obligations  of  conquered  State. 
Note,  5  B.  R.  0.  907. 

Miscellaneous.  Cited  as  to  amendment  of  writ  of  error.  Garland  v. 
Davis,  4  How.  154,  11  L.  Ed.  918;  as  case  where  "reasonable  cause''  ahd 
"probable  cause"  were  used  interchangeably;  Stacey  v.  Emery,  97  U.  S. 
646,  24  L.  Ed.  1036,  Perkins  v.  Hill,  2  Wood.  &  M.  165,  Fed.  Cas.  10,987, 
and  McLaren  v.  PenningtoU;  1  Paige,  108,  not  in  point. 


1  Cr.  45-103  NOTES  ON  U.  S.  REPORTS.  100 

1  Cr.  46-103,  2  Ifc  Bd.  29,  WILSON  ▼.  MASOK. 

Compact  of  two  States  cannot  deprlye  Congress  of  powifr  to  regulate 
appellate  Jurisdiction  of  Supreme  Court.    . 

Cited  in  Young  v.  Bank,  4  Cr.  388,  2  L.  Ed.  656,  holding  invalid  a  cor- 
porate charter  provision  denying  right  of  appeal  in  all  cases  where  Federal 
law  or  law  of  sister  State  conferred  such  right ;  Wheeling  Bridge  Case,  18 
How.  433,  15  L.  Ed.  438,  holding  compact  of  two  States  as  to  Ohio  River 
cannot'  restrict  power  of  Congress  to  regulate  conmierce  thereon ;  Ex  parte 
Holman,  28  Iowa,  105,  4  Am.  Rop.  169,  holding  one  in  custody  under  Fed- 
,  eral  process  cannot  be  released  by  habeas  corpus  in  State  court ;  Ex  parte 
Biddle,  2  liiason,  473,  Fed.  Cas.  1391,  on  question  of  removal;  dissenting 
opinion  in  Ex  parte  Crane,  5  Pet.  200,  205,  8  L.  Ed.  96,  98,  as  instance  of 
Supreme  Court's  appellate  jurisdiction ;  Baker  v.  ^Biddle,  1  Bald.  406,  409, 
Fed.  Cas.  764,  on  jurisdictional  matters. 

Cnder  Virginia  land  act  of  1779,  survey  without  an  entry  is  not  sofllcient 
foundation  for  title. 

Approved  in  Latham  v.  Oppy,  18  Ohio,  110,  112,  following  rule;  Patter- 
son V.  Bradford,  Hard.  (Ky.)  Ill,  holding  registering  of  survey  equally 
abortive  if  not  in  pursuance  of  an  entry;  Railroad  v.  Hoye,  2  Bland  Ch. 
261,  holding  survey  made  before  warrant  lodged  with  surveyor,  void  as 
against  regular  entry  and  survey;  Kendrick  v.  Dallum,  1  Overt.  499,  as  to 
calls  in  an  entry;  Miller  v.  Page,  6  Call,  39,  40,  41,  42,  where  entry  was 
held  too  vague;  Depew  v.  Howard,  l.Munf.  301,  where  held  sufficient. 
Cited  generally  in  Rich  v.  Elliot,  10  Vt.  215.  And  see  Carson  v.  Hanway, 
3  Bibb.  160,  McGee  v.  Thompson,  1  Bibb.  133,  134,  Beard  v.  Smith,  6  T.  B. 
Mon.  510. 

Distinguished  in  Overton  v.  Campbell,  5  Hayw.  171,  where  two  claims 
rested  upon  different  statutes. 

Virginia  land  act  provided  metbod  of  acquiring  title  and  courts  could 
not  liold  sufficient  substitution  of  equivalent  acts. 

Approved  in  Campbell  v.  Galbreath,  1  Watts,  93,  but  upholding  an  earlier 
entry  although  defective  against  later ;  Reid  v.  Dodson,  1  Overt.  409,  apply- 
ing principle  to  statutory  requirement  as  to  notice. 

Distinguished  in  Overton  v.  Campbell,  5  Hayw.  I7l,  where  two  claims 
rested  upon  different  statutes. 

Fact  that  other  claimant  had  actual  notice  of  survey  does  not  make  tliat 
equivalent  to  entry. 

,  Approved  in  Miller  v.  Paige,  6  Call,  36,  40,  41,  and  Latham  v.  Oppy,  18 
Ohio,  110,  following  rule;  Kerr  v.  Mack,  1  Ohio,  166,  holding  vague- 
ness in  entry  not  cured  by  actual  notice  to  other  claimant,  and  in  Smith  v. 
Fultz,  4  Serg.  &  R.  479.  Cited  in  general  discussion  as  to  entry  and  notice 
in  Mc Arthur  v.  Phoebus,  2  Ohio,  420,  Jones  v.  Van  Zant,  5  How.  225, 
12  L.  Ed.  127,  Davis  v.  Bryant,  2  Bibb,  112. 

One  acquiring  legal  title  with  notice  of  another's  cKiulty  Is  pro  tanto 
trustee^    But  if  no  equity  tlien  lie  is  not  trustee. 


N 


101  ^JNITED  STATES  v.  SCHOONER  PEGGY.'    "  1  Or.  103-110 

Approved  in  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597,  bd^ia  fid« 
poxehaser  of  lands  which  had  been  previously  conveyed  by  grantor  tanst^ 
allege  and  prove  want  of  notice  and  actnal  payment  of  money  independ-* 
ently  of  recitals  in  deed;  Dunlap  v.  Stetson,  4  Mason,  376,  Fed.  Cas.  4164, 
holding  that  grantor  afterward  acquiring  paramount  title  holds  as  trustee 
for  his  grantee;  Miller  v.  Aldrich,  31  Mich.  420,  holding  that  certain 
grantee  held  insurance  policy  as  trustee  for  the  mortgagee;  Bnie  v.  Pol- 
lock, 55  Miss.  314,  holding  legatees  paid  before  creditors  to  be  deemed 
trustees  for  them;  cited  generally  in  consideration  of  innocent  purchaser's 
rights  in  equity  in  Boone  v.  Chiles,  10  Pet.  212,  9  L.  Ed.  400,  Perkins  v. 
Swank,  43  Miss.  358,  and  Byers  v.  Fowler,  12  Ark.  286,  54  Am.  Dec.  288^ 

Caveat  is  remedy  to  prevent  patent  Issuing  where  statutory  directions 
liave  been  violated  to  Injury  of  commonwealtli. 
Quoted  approvingly  in  Miller  v.  Page,  6  Call,  39. 

In  case  of  doubt  literal  construction  leading  to  an  absurdity  .rejected  In 
favor  of  more  lil>eral  which  will  effectuate  object  intended. 

Cited  in  Weatherhead  v.  Bledsoe,  2  Overt.  379,  following  rule. 

Miscellaneous.  Cited  in  Hampton  v.  McGinnis,  1  Overt.  294,  and  Tumey 
V.  Young,  2  Overt.  268,  to  point  that  real  property  laws  should  be  certain 
and  uniform;  Pierpont  v.  Fowler,  2  Wood.  &  M.  31,  Fed.  Cas.  11,152,  to 
point  that  equitable  remedy  must  be  fuller  or  better  than  remedy  at  law; 
McLaren  v.  Pennington,  1  Paige,  108,  to  point  that  State  may  change 
remedy  upon  contract;  erroneously  in  Muldrow  v.  Agnew,  11  Mo.  621. 

1  Cr.  103-110,  2  Ifc  Ed.  49,  UNITED  STATES  V.  SCHOONEB  PEOOY. 
Finality  of  decree  of  inferior  courts 

Cited  in  Sharon  v.  Hill,  11  Sawy.  308,  26  Fed.  389,  holding  Superior 
Court  judgment,  pending  on  appeal  not  res  judicata;  Hills  v.  Sherwood, 
33  Cal.  478,  479,  holding  that  covenant  in  deed  that  title  would  be  con- 
firmed by  Federal  court,  not  satisfied  until  time  of  appeal  had  expired; 
Cakes  v.  Rogers,  47  Minn.  39,  28  Am.  St.  Rep.  327,  49  N.  W.  331,  and  Cary 
V.  Richardson,  35  La.  Ann.  506,  holding  certain  judgment  fin^  and  not 
interlocutory. 

Treaty  is  part  of  supreme  law  and  binding  on  Judiciary,  thou^th  affectli^ 
pending  litigation. 

Approved  in  Maiorano  v.  Baltimore  etc.  R.  Co.,  213  U.  S.  273,  53  L.  Ed. 
795,  29  Sup.  Ct.  424,  nonresident  alien  not  given  right  of  action  by  treaty 
with  Italy  for  wrongful  death  of  relative;  De  Lima  v.  Bid  well,  182  U.  S. 
195,  45  L.  Ed.  1055,  21  Sup.  Ct.  752,  holding  Porto  Rico  not  a  foreign 
State  within  meaning  of  tariff  laws;  United  Shoe  Machinery  Co.  v.  Du- 
plessis  Shoe  Mach.  Co.,  155  Fed.  845,  84  C.  C.  A.  76,  treaty  as  construed  by 
act  of  Congress  did  not  change  term  of  patent  expiring  with  British  patent ; 
Lone  Wolf  v.  Hitchcock,  19  App.  D.  C.  329,  courts  cannot  go  behind  treaty 
to  find  out  whether  fraud  and  deception  induced  Indians  to  consent  to  it ; 
Pollard  V.  i^bbe,  14  Pet.  412,  415,  10  L.  Ed.  519,  520,  in  construing  Spanish 
treaty  ceding  Florida;  Fellows  v.  Blacksmith,  19  How.  372,  15  L.  Ed.  686, 


•  • 


J      ♦ 


t     • 


lCr.l03-liCr'.  NOTES  ON  U.  S.  REPORTS.  102 

..wJiere  treaty  with  Seneca  Indians  was  involved;  In  re  Metzger,  17  Fed.  Cas. 
.'  254,*  folding  French  treaty  as  to  extradition  to  be  enforced  by  the  courts 
•'/like  an  act  of  Congress;  In  re  Race  Horse,  70  Fed.  607,  where  Indian 
arrested  for  violating  game  laws  was  reletused  under  treaty  provisiqn; 
Howell  V.  Fountain,  3  Ga.  179,  46  Am.  Dec.  417,  where  Indian  treaty  pro- 
vision as  to  land  sale  was  held  part  of  law  to  be  observed ;  Little  v.  Watson, 
32  Me.  225,  holding  treaty  provision  as  to  Canadian  boundary  supreme 
over  provision  of  State  Constitution ;  In  re  Kaine,  14  Fed.  Cas.  89,  holding 
treaty  is  in  force  as  law  without,  any  enabling  act;  State  v.  Foreman,  8 
Yerg.  313,  discussing  history  of  Indian  treaties  at  length;  dissenting  opin- 
ion in  Ex  parte  Crane,  5  Pet.  204,  8  L.  Ed.  97,  in  general  discussion. 

Effect  of  treaties  as  laws  and  power  to  annul  them  by  hostile  legisla- 
tion.   Note,  81  Am.  Dec.  539. 

Distinguished  in  Sharon  v.  Sharon,  79  Cal.  647,  22  Pac.  30,  refusing  to 
reverse  State  court  judgment  merely  because  it  appeared  that  Federal 
court  had  reached  different  conclusion. 

VHiere  private  TighU  are  involved,  courts  struggle  bard  against  retro- 
spective construction  of  14w. 

Approved  in  Snow  v.  Union  Pacific  R.  Co.,  55  Colo.  180,  133  Pac.  1039, 
giving  retrospective  operation  to  United  States  statute  allowing  individuals 
to  obtain  title  to  railroad  right  of  way  by  adverse  possession  under  State 
laws ;  In  re  Kean,  2  Hughes,  329,  Fed.  Cas.  7630,  refusing  to  apply  a  statute 
retrospectively  in  cases  where  it  would  affect  vested  rights  of  individuals; 
Gilliland  v.  Phillips,  1  S.  C.  155,  holding  contract  governed  by  usury  law 
in  forc^  when  entered  into;  State  v.  Dews,  Charlt.  (Ga.)  406,  upholding 
act  transferring  custody  of  jail  from  sheriff;  Schenck  v.  Peay,  21  Fed.  Cas. 
673,  sustaining  proposition  that  Congress  may  validly  pass  retrospective 
laws;  dissenting  opinion  in  Rich  v.  Flanders,  39  N.  H.  367,  ai*guing  that 
retrospective  law  affecting  remedies  might  be  invalid. 

Distinguished  in  Union  Pacific  R.  Co.  v.  Snow,  231  U.  S.  211,  58  L.  Ed. 
188,  34  Sup.  Ct.  104,  retrospective  operation  not'  given  to  United  States 
statute  allowing  individuals  to  obtain  title  to  unused  portion  of  railroad 
right  of  way  by  adverse  possession  under  State  law ;  dissenting  opinion  in 
Snow  V.  Union  Pacific  R.  Co.,  55  Colo.  181,  133  Pac.  1040,  majority  holding 
that  retrospective  operation  should  be  given  to  United  States  statute  allow- 
ing individuals  to  obtain  title  to  unused  portion  of  railroad  right  of  way 
by  adverse  possession  under  State  statute. 

Effect  of  change  of  law  pending  appeal 
Approved  in  Gulf  etc.  Ry.  Co.  v.  Dennis,  224  U.  S.  506,  56  L.  Ed.  861, 
32  Sup.  Ct.  542,  intervening  decision  of  State  court  that  statute  allowing 
attorneys'  fees  is  invalid  causes  United  States  court  to  reverse  decision 
of  State  court  valid  where  rendered;  Dinsmore  v.  Southern  Express  Co. 
etc.,  183  U.  S.  120,  46  L.  Ed.  113,  22  Sup.  Ct.  46,  applying  rule  in  connec- 
tion with  passage  of  act  of  1901,  excluding  e^q^ress  companies  from  opera- 
tion of  war  revenue  act  of  1898,  pending  appeal  of  cause;  Pelt  v.  Payne, 
90  Ark.  603,  184  Am.  St.  Rep.  45,  30  S.  W.  427,  reversing  decision  by  lower 
court  that  mortgage  was  void,  since  retroactive  act  passed  pending  appeal 


103  XJNITED  STATES  v.  SCHOONER  PEGGY.    1  Cr.  103^110 

▼alidated  defeetive  mortgages ;  People  v.  Bank  of  San  Luis  Obi8X)0, 159  Cal. 
68,  Ann.  Gas.  1912B,  1148,  37  L.  B.  A.  (N.  S.)  984, 112  Pac.  867,  final  judg- 
ment of  appellate  court  that  bank  ia  insolvent  cannot  be  destroyed  by 
repeal  of  statute  supporting  it  pending  decision  in  collateral  proceeding; 
Vance  ▼.  Rankin,  194  111.  628,  62  N.  E.  808,  applying  rule  where  statute 
allowing  disconnection  of  territory  from  municipalities  was  repealed;  Mc- 
Dowell ▼.  Fuller,  183  Mich.  644,  646,  160  N.  W.  354,  355,  statute  passed, 
pending  appeal^  withdrawing  consent  of  State  to  be  sued  takes  away  sup- 
port of  judgment  against  warden  of  reformatory  in  breach  of  contract 
case;  Simpson  v.  Stoddard  Co.,  173  Mo.  476,  73  S.  W.  714,  applying  prin- 
ciple where  pending  proceedings  to  quiet  title  to  swamp-lands  irregularly 
conveyed  by  county  curative  act  w^&s  passed;  McKennon  v.  State,  42  Tex. 
Cr.  373,  96  Am.  St.  Bep.  802,  60  S.  W.  42,  applying  principle  to  appeal  from 
conviction  in  Justice  Court ;  State  v.  Abraham,  64  Wash.  628, 117  Pac.  504, 
statute  passed  pending  appeal  and  expressly  validating  defective  commer- 
cial waterway  district  organized  under  former  act  controls  decision  of 
appellate  couart;  Chicago  etc.  R.  R.  Co.  v..  People,  219  111.  413,^  L.  R.  A. 
(N.  8.)  508,  76  N.  E.  572,  majority  holding  where  Supreme  Court  finally 
adjudges  particular  tax  invalid,  legislature  cannot  validate  levy  and  make 
tax  collectible;  State  v.  Baltimore  etc.  R.  R.,  3  How.  552,  U  L.  Ed.  722, 
where  repeal  of  law  imposing  a  penalty  was  held  a  remission  thereof; 
First  etc.  Bank  v.  Henderson,  101  Cal.  310,  35  Pac.  899,  where  act  imposing 
penalty  was  repealed  before  decision  in  appellate  court  and  repealing  act 
was  held  applicable;  Coles  v.  Madison  Co.,  Breese  (111.),  159,  160,  12  Am. 
Dec  166,  167,  where  penal  law  was  repealed  after  verdict  and  before  judg- 
ment and  was  held  bar  to  judgment;  Thompson  v.  Basset,  5  Ind.  536, 
affirming  that  suit  for  penalty  cannot  be  sustained  after  repeal  of  law 
creating  it;  Exeter  v.  Stratham,  2  N.  H.  104,  and  State  v.  Norwood,  12 
Md.  206,  reversing  a  judgment  based  on  stamp  act  thereafter  repealed; 
Mayor  v.  State,  30  Md.  119,  penal  law.  was  repealed  after  indictment  and 
repeal  was  held  bar;  Day  v.  Day,  22  Md.  539,  reversing  judgment  allowing 
patent  on  ground  of  subsequent  law  prohibiting  it;  State  v.  Edward,  5 
Mart.  (O.  S.)  475,  dismissing  appeal  on  this  ground.  The  principle  is  ap- 
plicable where  the  statute  repealed  is  criminal  and  necessitates  the  de- 
fendant's discharge:  Keller  v.  State,  12  Md.  326,  327,  71  Am.  Dec.  597, 
598 ;  Wall  v.  Stete,  18  Tex.  697,  70  Am.  Dec.  306 ;  Mahoney  v.  State,  5  Wyo. 
525,  63  Am.  St.  Bep.  67,  42  Pac.  15.  Cited  in  general  discussion  and  more 
generally  applied  in  Price  v.  Nesbit,  29  Md.  266,  Wade  v.  St.  Mary's 
School,  43  Md.  181,  Montague  v.  State,  54  Md.  483,  Turner  v.  Bryan,  83 
Md.  374,  35  Atl.  21,  Bayard  v.  McLane,  3  Harr.  (Del.)  233,  Allen  v. 
Farrow,  2  Bail.  L.  587 ,  State  v.  Taylor,  2  McCord,  490. 

Distinguished  in  Wheelock  v.  Myers,  64  Kan.  52,  67  Pac.  633,  holding 
lower  court  erred  in  following  mandate  when  statute  upon  which  it  was 
based  was  repealed  pending  proceeding. 

Miscellaneous.  Cited  in  Ledgarwood  ▼.  Picket,  1  McLeani  145,  Fed.  Cas. 
8175,  not  in  point. 


1  Cr.  U0^137  NOTES  ON  U.  S.  REPORTS.  104 

1  Cr.  110-117,  2  L.  Ed.  61,  IKEflliEB  ▼.  SHEHEE. 

Plea  at  term  next  exunilng  Judgment  by  default  ia  permissible,  Imt  at 
subsequent  term  It  is  discretionary. 

Cited  in  Martin  v.  Baltimore  etc.  R.  R.,  151  U.  S.  680,  38  L.  Ed.  816, 
14  Sup.  Ct.  538,  where  petition  for  removal  after  prescribed  time  was 
denied;  Dibble  v.  Rogers,  2  Mich.  407,  holding  same  rale  as  to  discretion 
applicable  in  granting  of  new  trial. 

I  Or.  117-137,  2  L.  Ed.  63,  TUBNEB  ▼.  FENDALIi. 

Fact  of  insolvency  is  matter  in  pals  to  be  proved  by  parol  and  other 
testimony. 

Followed  in  Dunlop  v.  Munroe,  1  Cr.  C.  C.  541,  Fed.  Ca^.  4167,  and 
Noland  v.  Moore,  2  Litt.  (Ky.)  368,  allowing  proof  by  parol  that  A  B  was 
justice  of  peace;  Williams  v.  Clay,  5  Litt.  57,  allowing  parol  proof  of  dis- 
charge in  insolvency;  Phelps  v.  Burton,  6  T.  B.  Mon.  37,  holding  such  dis- 
charge not  within  issue  of  nul  tiel  record. 

To  sustain  exception  to  rejection  of  testimony  its  relevancy  must  be  made 
affirmatively  to  appear. 

Cited  in  Duffee  v.  Pennington,  1  Ala.  508,  Crenshaw  v.  Davenport,  6 
Ala.  392,  41  Am.  Dec.  57,  Carter  v.  Bennett,  4  Fla.  339,  Jackson  v.  Roberts, 

II  Wend.  429,  and  Polk  v.  Robertson,  1  Overt.  457,  following  rule;  Blair 
V.  Cofifman,  2  Overt.  177,  5  Am.  Dec.  660,  following  rule  on  relevancy  of 
testimony. 

Money  may  be  seized  upon  execution. 

Approved  in  Citizens'  Banking  Co.  v.  Ravenna  Nat.  Bank,  234  U.  S.  365, 
58  L.  Ed.  1354,  34  Sup.  Ct.  806,  failure  of  insolvent  to  vacate  preference 
for  four  months  after  levy  of  execution  is  not  final  disposition  of  property ; 
Spenoer  v.  Blaisdell,  4  N.  H.  201,  17  Am.  Dec.  414,  holding  bank  bills  may 
be  attached ;  Sheldon  v.  Root,  16  Pick.  509,  28  Am.  Dec.  267,  holding  sale 
thereof  unnecessary;  Handy  v.  Dobbin,  12  Johns.  220,  with  express  ap- 
proval ;  Holmes  v.  Nuncaster,  12  Johns.  396,  upholding  levy  on  bank  notes ; 
United  States  v.  Canoe,  5  Hughes,  493,  Fed.  Cas.  14,718,  holding  money 
included  within  prohibition  against  goods  and  chattels;  Corbett  v.  State, 
31  Ala.  340,  holding  bank  bills  may  be  subject  of  larceny ;  Doyle  v.  Sleeper, 
1  Dana,  535,  543,  559,  and  Howe  v.  Waysman,  12  Mo.  174,  49  Am.  Dec.  130, 
holding  fraudulent,  as  against  creditors,  purchase  by  father  in  his  chil- 
dren's name;  Edmonson  v.  Meacham,  50  Miss.  39,  as  to  similar  deed  in 
name  of  wife  and  children ;  Harris  v.  Moody,  30  N.  Y.  277,  282,  86  Am.  Dec. 
383,  holding  bank  notes  ^able  along  with  rest  of  cargo  to  contribute  to 
general  average  loss;  Citizens'  Bank  v.  Nantucket  Co.,  2  Story,  52,  Fed. 
Cas.  2730,  arguendo. 

Execution  cannot  be  levied  upon  money  of  defendant  when  in  hands  of 
sheriif  collected  upon  Judgment  in  such  defmdant's  favor  in  another  suit. 

Approved  in  In  re  Kenney,  97  Fed.  556,  holding  proceeds  of  execution 
levied  within  four  months  of  bankruptcy  belong  to  bankrupt  estate;  Com- 
merce Vault  Co.  ▼.  Barrett,  222  111,  176,  177,  78  N.  E.  48,  49,  where  mort- 


105  TURNER  v.  TEND  ALL.  1  Cr.  117-137 

gBged  leasehold  was  sold  on  foreolDSure  and  holder  of  judgment  against 
mortgagor,  obtained  after  foreclosure  redeemed,  had  leasehold  resold,  dther 
judgments  obtained  by  judgment  creditor  after  resale  are  not  lien  on 
excess;  Eaton  v.  McElhonc,  6  Kan.  App.  226,  227,  49  Pac.  695,  holding 
sheriff  cannot  execute  on  moneys  in  his  own  hands  collected  by  him  on 
former  execution;  Fulghum  v.  Williams  Co.,  114  Ga.  646,  40  S.  E.  696, 
holding  mortgagee  of  chattels  cannot  under  power  of  sale  in  moi-tgage  sell 
goods  when  in  hands  of  sheriff  by  virtue  of  execution;  Hardy  ▼.  Tilton, 
68  Me.  196,  28  Am.  Rep.  S6,  following  rule;  Barnett  v.  Bass,  10  Ala.  954, 
holding  contrary  practice  of  coroner  error  and  declaring  that  he  should  have 
made  special  return  setting  forth  facts;  Reddick  v.  Smith,  3  Scam.  (III.) 
452,  applying  rule  to  attachment  proceedings;  Campbell  v.  Hasbrook,  24 
111.  246,  holding  question  settled  in  Illinois;  Winton  v.  State,  4  Ind.  323, 
although  statute  authorized  levy  on  money  in  general  terms;  Hooks  v. 
York,  4  Ind.  637,  holding  judgment  money  in  court's  hands  not  leviable; 
Stratton  v.  Ham,  8  Ind.  90,  holding  executor  may  be  garnished  as  to  un- 
ascertained distributive  shares  of  an  estate;  County  of  Polk  v.  Sypher, 
17  Iowa,  366,  86  Am.  Dec.  672,  holding  contra,  although  not  distinguishing 
main  ease  where  writ  was  not  required  to  be  returned  into  court;  First 
V.  Miller,  4  Bibb  (Ky.),  312,  Harding  v.  Stevenson,  6  Har.  &  J.  267,  and 
Jones  V.  Jones,  1  Bland  Ch.  461,  18  Am.  Dec.  842,  holding  that  sheriff 
could  not  be  compelled  to  return  money  into  another  court  than  that  of  the 
execution ;  Wilder  v.  Bailey,  3  Mass.  291,  expressly  approving  rule ;  Thomp- 
son V.  Brown,  17  Pick.  464,  penalizing  sheriff  for  contrary  practice ;  Marvin 
V.  Hawley,  9  Mo.  384,  388,  48  Am.  Dec.  549,  noting  and  criticising  contrary 
rule ;  Curling  v.  Hyde,  10  Mo.  376,  denying  that  administrator  can  be  gar- 
nished for  property  in  his  hands ;  Ex  parte  Fearle,  13  Mo.  468,  63  Am.  Dec. 
155,  approving  act  of  sheriff  in  obtaining  order  of  court  permitting  appli- 
cation of  such  moneys  to  the  second  writ;  State  ex  rel.  v.  Boothe,  68  Mo. 
549,  551,  hofding  money  in  sheriff's  custody  from  an  attachment  afterward 
dissolved  could  not  be  levied  upon  by  execution;  Crane  v.  Freese,  16 
N.  J.  L.  307,  following  rule,  although  statute  authorized  execution  upon 
moneys  in  general  terms ;  Davis  v.  Mahany,  38  N.  J.  L.  107,  holding,  how- 
ever, that  execution  moneys  may  be  attached;  Miller  v.  Adsit,  16  Wend. 
363 ,  Baker  v.  Ken  worthy,  41  N".  Y.  217,  reviewing  New  York  cases ;  State 
Y.  Lea,  8  Ired.  L.  95,  96,  Dawson  v.  Holcomb,  1  Ohio,  276,  13  Am.  Dec. 
619,  and  Means  v.  Vance,  1  Bail.  L.  40,  expressly  approving  rule;  Hill  v. 
Lacrosse  etc.  R.  R.,  14  Wis.  293,  80  Am.  Dec.  784,  collecting  cases  and 
noting  jurisdictions  contra ;  Reno  v.  Wilson,  Hempst.  93,  Fed.  Cas.  11,700a, 
applying  rule;  Clarke  v.  Shaw,  28  Fed.  356,  24  Blatchf.  97,  noting  that 
Vermont  rule  is  contra,  but  following  principal  case  as  to  money  in  hands 
of  United  States  marshal  in  that  State.  The  Vermont  court  adopted  the 
rule  in  Prentiss  v.  Bliss,  4  Vt.  516,  24  Am.  Dec.  632,  but  afterward  ruled 
oontra;  Summers  v.  Caldwell,  2  Nott  &  McC.  342,  but  upholding  act  of 
sheriff  in  levying  execution  upon  such  execution  money;  Wintercast  v. 
Smith,  4  Rawle,  185,  arguendo. 

Bight  to  garnish  or  attach  proceeds  of  execution  sale  in  hands  of 
sheriff.    Note,  48  L.  R.  A.  (N.  S.)  571,  672. 


1  Cr.  117-137  NOTES  ON  U.  S.  REPORTS.  106 

Distingaished  in  dissenting  opinion  in  Eaton  v.  McElhone,  6  Kan.  App. 
228,  49  Pac.  696,  majority  holding  sheriff  cannot  execute  on  moneys  in  his 
own  hands  collected  by  him  on  former  execution ;  Dunlop  v.  Patterson  Ins. 
Co.,  74  N.  Y.  150,  SO  Am.  Rep.  286,  holding  money  deposited  with  court 
clerk  in  lieu  of  undertaking  on  appeal  liable  to  attachment. 

Denied  in  Dolby  v.  MullinSi  3  Humph.  437,  438,  89  Am.  Dec.  181,  adopt- 
ing  rule  that  sherifE  may  so  levy  on  execution  moneys;  Hamilton  v.  Ward, 

4  Tex.  367,  369,  Pace  v.  Smith,  57  Tex.  560,  561,  Mann  v.  Kelsey,  71  Tex. 
613,  10  Am.  St.  Rep.  803,  12  S.  W.  45^  and  Pawley  v.  GainS|  1  Overt.  209, 
following  Tennessee  rule. 

Execution  creditor  has  ne  property  In  or  title  to  any  specific  pieces  of 
money  realized  by  sheriff  under  execution.  * 

Approved  in  In  re  Easley,  93  Fed.  421,  holding  bankruptcy  act  1898, 
section  67,  does  not  affect  lien  of  execution  levied  within  four  months  but 
founded  on  judgment  recovered  two- years  before;  Carlton  v.  Conroy,  21 
Cal.  172,  holding  that  creditor  cannot  follow  such  moneys  deposited  by 
sheriff  with  his  banker;  Scott  v.  Smith,  2  Kan.  445,  holding  depositor  in  bank 
had  no  leviable  property  in  any  specific  money;  Adams  v.  Lane,  38  Vt. 
646,  holding  execution  moneys  deposited  by  sheriff  with  his  banker  not 
attachable. 

Sheriff  having  money  collected  for  execution  creditor  against  whom  he 
holds  execution  must  return  money  into  court,  and  not  apply  it  on  execution. 

Approved  in  Bank  of  Minnesota  v.  Hayes,  11  Mont.  538,  539,  540,  29 
Pac.  91 ,  Hickman  v.  Matlock,  1  Overt.  262,  following  rule ;  Clarke  v.  Lane- 
more,  188  U.  S.  489,  47  L.  Ed.  558,  23  Sup.  Ct.  364,  holding  proceeds  of  exe- 
cution levy  in  hands  of  sheriff  at  time  of  bankruptcy  belong  to  bankrupt 
estate;  In  re  Kenney,  97  Fed.  557,  holding  proceeds  of  execution  levied 
within  four  months  of  bankruptcy  belong  to  bankrupt  estate;  The  Fanny, 
8  Fed.  Cas.  992,  applied  in  distribution  of  remnants  and  surpluses  in  ad- 
miralty; Acker  v.  Ledyard,  8  N.  Y.  63,  applying  principle  in  holding  that 
sheriff  may  protect  himself  against  hostile  claimants  to  execution  moneys 
by  paying  into  court;  Clerk's  Ofi&ce  v.  Allen,  7  Jones  L.  158,  holding  that 
court  may  order  application  of  plaintiff's  execution  money  in  sheriff's 
hands,  to  payment  of  his  costs;  First  etc.  Bank  v.  Hanchett,  126  111.  505, 
16  N.  E.  909,  Harding  v.  Stevenson,  6  Har.  &  J.  267,  Dennison  v.  Circuit 
Judge,  37  Mich.  284,  Jones  v.  Jones,  1  Bland  Ch.  461,  18  Am.  Dec.  342, 
and  Briggs  v.  Planters'  Bank,  1  Freem.  Ch.  585.  holding  sheriff  cannot  be 
required  to  return  moneys  into  another  court  than  that  of  execution; 
Stebbins  v.  Walker,  14  N.  J.  L.  93,  97,  100,  26  Am.  Dec.  601,  505,  508, 
remarking  that  sheriff  may  pay  money  over  where  no  conflicting  claims,  but 
is  entitled  to  protect  himself  by  paying  it  into  court;  Williams  v,  Rocers, 

5  Johns.  167,  remarking  that  surplus  moneys  of  defendant  in  execution 
in  sheriff's  hands  might  be  subjected  to  a  second  execution;  Dewey  v. 
White,  65  N.  C.  228,  arguendo. 

Miscellaneous.  Distinguished  in  Williamson  v.  Ringgold,  4  Cr.  C.  C. 
59,  Fed.  Cas.  17,755,  as  not  in  point  on  question  of  replevin.    Cited  in 


107  MARBURY  v.  MADISON,  1  Cr.  137-180 

Baker  ▼•  Allen,  2  Overt.  176,  on  point  that  regularity  of  summary  pro- 
ceedings ought  to  be  favored  in  appellate  eourt. 

1  Or.  187-180,  2  L.  Bd.  60,  MABBXTBT  ▼.  MADISON. 

Since  al&rmative  words  must  often  1>6  miderstood  as  implying  a  negative, 
file  grant  of  original  jurisdiction  to  the  Supreme  Oourt  contained  in  the  Oon- 
stltation.  Implies  that  its  original  jurisdiction  shall  he  restricted  to  the  con- 
stitatioiial  grant;  and  an  act  of  Oongress  authorizing  an  additional  original 
Jurisdiction  to  issae  mandamus  and  other  writs  is  pro  tanto  void.  So  also  it 
leems  that  the  grant  of  original  Jurisdiction  in  the  specified  instances  implies 
a  prohlhitlon  against  the  concurrent  exercise  of  any  of  that  Jurisdiction  hy 
other  courts. 

The  proposition  stated  in  the  syllabus  has  been  approved  in  the  follow- 
ing  recent  cases :  In  re  Winn/213  U.  S.  466,  58  L.  Ed.  876,  29  Sup.  Ct.  515, 
mandamus  compelling  Federal  Circuit  Court  having  no  jurisdiction  to  re- 
mand cause  and  State  court  is  part  of  appellate  jurisdiction  of  this  court; 
Storm  Lake  Tub  ft  Tank  Factory  v.  Minneapolis  etc.  R.  Co.,  209  Fed.  902, 
action  against  railroad  to  recover  damages  to  interstate  shipment  through 
negligence  not  removable  to  Federal  court  as  violation  of  Interstate  Com- 
merce Act  and  amendments;  United  States  v.  Mills,  11  App.  D.  C.  511, 
certiorari  is  proper  means  to  restrain  United  States  commissioner  claiming 
right  to  release  person  sentenced  by  police  court  of  District  of  Columbia 
under  Federal  law;  Seymour  v.  South  Carolina,  2  App.  D.  C.  245,  Court  of 
A])pea]s  has  .no  appellate  jurisdiction  to  review  decision  of  commissioner 
refusing  r^striation  of  trademark ;  Williams  v.  Louisville  etc.  R.  Co.,  176 
Ala.  657,  58  South.  324,  certiorari  is  appropriate  remedy  to  review  decisions 
of  Conrt  of  Appeals  by  Supreme  Court  under  constitutional  power  to  su- 
perintend and  control  inferior  courts;  Pacific  Telephone  &  Telegraph  Co. 
r.  Eshleman,  166  Cal.  647,  690,  Ann.  Oas.  19150,  882,  50  L.  R.  A.  (N.  S.) 
58,  137  Pac.  1120,  1138,  legislature  has  power  under  State  Constitution  to 
limit  jurisdiction  of  courts  by  giving  right  of  review  of  railroad  commis- 
sion's orders  to  Supreme  Court  only;  Ex  parte  Cox,  44  Fla.  540,  61  L.  R.  A. 
784,  33  South.  610,  writ  of  error  does  not  lie  from  Supreme  Court  to  review 
judgment  in  habeas  corpus  rendered  by  justice  thereof  in  habeas  corpus; 
State  V.  Anheuser-Busch  Brewing  Assn.,  76  Kan.  193,  90  Pac.  780,  court, 
having  original  jurisdiction  in  quo  warranto,  may  issue  injunction  to  re- 
strain use  and  transfer  of  property,  and  appoint  receiver  for  property 
owned  and  used  by  foreign  brewing  company  unlawfully  conducting  busi- 
ness in  State ;  In  re  Burnette,  73  Kan.  623,  85  Pac.  580,  holding  statute  re- 
lating to  appeals  in  disbarment  cases  does  not  authorize  trial  de  novo,  and 
is  not  void  as  extension  of  original  jurisdiction;  Sanders  v.  Common- 
wealth, 117  Ky.  7,  111  Am.  St.  Rep.  822,  1  L.  R.  A.  (N.  S.)  982,  77  S.  W. 
359,  upholding  act  of  1899,  prohibiting  sale  of  milk  from  cows  fed  on  dis- 
tillery slop;  State  v.  Assur.  Co.  of  America,  251  Mo.  299,  158  S.  W.  647, 
court,  having  original  jurisdiction  in  quo  warranto,  may  issue  temporary 
injunction  to  prevent  violation  of  anti-trust  law  of  State  by  foreign  fire  in- 
surance company;  Mott  v.  Commissioners,  126  N.  C.  875,  36  S.  E.  333, 
holding  acts  of  1899,  chapter  371,  infringing  on  criminal  jurisdiction  of 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS,  108 

Superior  Courts,  void ;  State  v.  Cole,  4  Okl.  Cr.  38,  109  Pac.  742^  Criminal 
Court  of  Appeals,  in  the  exercise  of  its  appellate  jurisdiction,  has  power 
to  issue  writ  of  mandamus  directed  to  an  inferior  court;  State  v.  Huston, 
21  Okl.  789,  97  Pac.  985,  Governor  under  constitutional  power  to  execute 
laws  of  State  has  right  to  bring  suit  in  name  of  State,  and  by  writ  of  pro- 
hibition prevent  court  from  exercising  unauthorized  judicial  power;  Hig- 
gins  V.  Tax  Assessors,  27  R.  I.  405,  63  Atl.  36,  act  giving  Superior  Court 
jurisdiction  of  prerogative  writs  does  not  infringe  constitutional  power  of 
Supreme  Court  to  issue  these  writs  where  power  of  latter  is  not  exclusive; 
State  v.  Ansel,  76  S.  C.  405,  413,  11  Ann.  Cas.  613,  57  S.'E.  190,  192,  cerr 
tiorari  will  not  lie  to  review  Governor's  removal  of  State  dispensary  board, 
when  such  removal  was  within  his  discretion;  Redmond  v.  Smith,  22  T^ex. 
Civ.  324,  54  S.  W.  637,  holding  State  courts  have  jurisdiction  of  actions  by 
or  against  consuls;  Windsor  v.  Bridges,  24  Wash.  547,  64  Pac.  782,  holding 
prohibition  does  not  lie  from  Supreme  Court  to  State  land  commission; 
as  the  syllabus  shows,  the  Supreme  Court  held  in  this  case  that  its  original 
jurisdiction  could  not  be  enlarged  by  Congress. 

Marbury  v.  Madison  has  been  deemed  to  have  "settled  this  construction 
of  the  Constitution  .  .  .  and  no  one  wha  has  examined  the  subject  now 
questions  it."  Florida  v.  Georgia,  17  How.  505,  609,  15  L.  Ed.  199,  201. 
See,  also,  Harrison  v.  Nixon,  9  Pet.  510,  530,  9  L.  Ed.  211,  218 ;  United  States 
v.  New  Bedford  Bridge,  1  Wood.  &  M.  440,  Fed.  Cas.  15,867;  California  v. 
Southern  Pacific  Co.,  157  U.  S.  261,  89  L.  Ed.  695,  15  Sup.  Ct.  604;  Jim  v. 
State,  3  Mo.  147,  149 ;  Ex  parte  Vallandigham,  1  Wall,  252,  17  L.  Ed.  593 ; 
Virginia  v.  Rives,  100  U.  S.  327,  25  L.  Ed.  672.  And  if  not  by  'Congress  then 
not  by  the  courts  themselves.  Accordingly  it  has  been  held  that  certiorari 
would  not  issue  from  it  to  review  proceedings  of  a  military  commission  or<- 
dered  by  a  general  officer  of  the  United  States  army.  Ex  parte  Vallandig- 
ham, 1  Wall.  252,  17  L.  Ed.  593.  And  that  parties  may  not  come  in  as  in- 
terveners when  a  prize  cause  is  before  the  Supreme  Court,  who  were  not 
parties  below,  the  Supreme  Court  having  no  original  jurisdiction  in  prize 
causes.  The  William  Bagaley,  5  Wall.  412,  18  L.  Ed.  591.  And  in  a  more 
recent  case  the  proposition  is  relied  on  in  denying  the  original  jurisdiction 
of  the  Supreme  Court  in  a  suit  between  a  State  and  citizens  of  the  same  as 
well  as  of  a  foreign  State.  California  v.  Southern  Pacific  Co.,  157  U.  S.  261, 
39  L.  Ed.  695,  15  Sup.  Ct.  604.  This  fact  has  also  been  pointed  out  as  one 
of  the  peculiarities  of  the  Supreme  Court  in  a  case  discussing  the  limited 
character  of  the  Federal  jurisdiction  and  holding  that  a  Federal  criminal  in- 
dictment must  be  sustainable  by  the  provisions  of  Federal  law.  It  is  also 
made  the  basis  for  the  proposition  that  it  is  incompetent  for  the  Supreme 
Court,  upon  motion  in  a  mandamus  proceeding  pending  before  it  on  appeal, 
to  substitute  the  name  of  a  new  incumbent  as  defendant  in  place  of  that 
of  his  predecessor  in  office;  United  States  v.  Boutwell,  17  Wall.  609,  21 
L.  Ed.  722,  3  MacA,  177,  178. 

A  further  and  most  important  consequence  of  this  rule  that  the  original 
jurisdiction  of  the  Supreme  Court  may  not  be  enlarged  is  the  fact  that  the 
Supreme  Court  is  thus  cut  off  from  power  to  issue  the  prerogative  writs 
except  as  incident  and  auxiliary  to  the  exercise  of  a  jurisdiction  already 


109  MARBURT  V.  MADISON.  ICr;  137-180 

otherwise  acquired.  It  can,  therefore,  only  issue  mandamus  in  the  exer- 
dise  of  original  jurisdiction  in  the  few  cases  "where  a  State  or  ambassador 
or  other  public  minister,  or  a  consul  or  a  vice-consul  is  a  party,"  since  it 
is  only  in  these  cases  that  it  has  original' jurisdiction  at  all;  Virginia  v. 
Rives,  100  U.  S.  327,  25  L.  Ed.  672.  These  restrictions  on  the  power  to 
issue  mandamus  were  specifically  decided  in  Marbury  v.  Madison,  andvthe 
citations  concerned  therewith  are,  therefore,  more  numerous.  As  to  the 
proposition  that  the  Supreme  Court  has  no  jurisdiction  to  issue  mandamus 
in  the  exercise  of  its  original  jurisdiction,  except  as  noted  al)ove,  there 
seems  to  have  been  no  subsequent  diversity  of  opinion.  Apparently  but 
one  other  case  has  reached  the  Supreme  Court  upon  this  question.  Mc- 
Cluny  v.  Silliman,  2  Wheat.  370,  4  L.  Ed.  263.  -  Marbury  v.  Madison  has 
"ever  since  been  accepted  as  fixing  the  construction  of  this  part  of  the 
Constitution."  Ex  parte  Yerger,  8  Wall.  97,  19  L.  Ed.  886;  see,  also,  Riggs 
v.  Johnson  Co.,  6  Wall.  188,  18  L.  Ed.  774;  Ex  parte  Newman,  14  Wall. 
165,  20  L.  Ed.  879;  United  States  v.  Boutwell,  17  Wall.  609,  21  L.  Ed.  722. 
There  has,  however,  been  considerable  litigation  in  the  settlement  of 
other  phases  of  the  question.  It  was  early  decided  that  the  Circuit  Courts 
of  the  United  States  were  similarly  without  power  to  issue  mandamus  to 
executive  officers.  Mintife  v.  Wood,  7  Cr.  504,  3  L.  Ed.  420 ;  M'Clung  v. 
Silliman,  6  Wheat.  604,  5  L.  Ed.  341,  Van  Antwerp  v.  Hulburd,  7  Blatchf. 
426,  433,  Fed.  Cas.  16,826,  State  ex  rel.  Attorney-General  v.  Cunningham, 
81  Wis.  603,  51  N.  W.  736;  except  in  the  exercise  of  a  jurisdiction  already 
otherwise  acquired — as,  for  instance,  to  compel  county  officers  to  levy  a 
tax  to  pay  railroad  bonds,  it  having  been  duly  decided  that  the  bonds  were 
a  valid  obligation  and  this  the  proper  remedy.  Riggs  v.  Johnson  Co.,  6 
Wall.  188,  18  L.  Ed.  774.  But  much  of  the  effect  of  this  ruling  was  coun- 
teracted by  the  further  holding  of  another  early  case,  that  the  jurisdiction 
of  the  Circuit  Court  for  the  District  of  Columbia  is  more  extensive.  And 
it  is  well  settled  that  that  tribunal  and  its  successor,  the  Supreme  Court 
for  the  district,  may  issue  mandamus  to  officers  of  the  executive  depart- 
ment of  the  government  to  compel  the  performance  of  mere  ministerial 
duties.  The  leading  case  arose  upon  a  petition  for  a  mandamus  to  the 
postmaster-general  to  compel  him  to  credit  applicants  with  certain  sums 
of  money  on  mail  contracts  as  provided  by  special  act  of  Congress.  The 
Circuit  Court  for  the  District  of  Columbia  took  jurisdiction  and  ordered 
the  mandamus  to  issue.  Upon  appeal  this  decision  was  affirmed  thougli 
not  without  vigorous  dissent  on  the  part  of  three  members  of  the  court. 
The  cases  holding  that  the  Circuit  Courts  in  the  several  States  had  no 
jurisdiction  to  issue  mandamus  except  in  the  exercise  of  a  jurisdiction  al- 
ready otherwise  acquired,  were  distinguished  upon  the  ground  that  Con- 
gress had  not  conferred  upon  them  all  of  the  judicial  power  of  the  United 
Stales  as  it  had  upon  the  Circuit  Court  for  the  district;  and  the  decision 
was  rested  mainly  upon  the  ground  that  as  the  common  law  of  Maryland 
passed  with  the  ceded  territory  and  continued  a  part  of  the  law  of  the 
District  of  Columbia,  this  law,  unless  repealed  in  some  way,  continued  in 
force  and  gave  a  right  to  the  remedy  of  mandamus  wherever  such  a  right 
existed  at  common  law.    Kendall  v.  United  States,  12  P^t.  617,  618,  621,. 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  110 

651,  9  L.  Ed.  1218,  1219,  1231 ,  affirming  United  States  v.  Kendall,  5  Cr. 
C.  C.  163,  175,  183,  187,  190>  259,  Fed.  Cas.  15,517 ;  see,  also,  State  ex  rel. 
V.  Cunningham,  81  Wis.  503,  51  N.  W.  736.  Mandamus  and  the  other  State 
writs  have  issued  from  that  court  to  the  executive  officers  of  the  Federal 
government  in  a  great  variety  of  cases,  which  it  is  not  necessary  to  note 
at  greater  length  in  this  connection. 

But  although  the  decision  in  the  leading  case  frustrated  the  intention  of 
Congress  to  confer  upon  the  Supreme  Court  power  to  mandamus  executive 

'officers  of  the  United  States,  the  prohibition  of  the  Constitution  was  held 
to  offer  no  impediment  to  the  issuance  of  the  writ  to  other  Federal  courts. 
And  this,  because  cases  in  which  mandamus  issues  to  such  courts  are  cases 
involving  the  exercise  of  appellate  and  not  original  jurisdiction.  Ex  parte 
Crane,  5  Pet.  200,  8  L.  Ed.  96 ;  Ex  parte  Newman,  14  Wall.  165,  20  L.  Ed. 
879 ;  Virginia  v.  Rives,  100  U.  S.  327,  25  L.  Ed.  672.  The  citations  do  not 
lead  us  into  an  extensive  discussion  of  the  circumstances  under  which  man- 
damus issues  in  accordance  with  the  principles  and  usages  of  law  to  lower 
courts.  In  one  of  the  citations  it  issued  to  compel  a  judge  to  sign  a  bill 
of  exceptions.  Ex  parte  Crane,  5  Pet.  189,  8  L.  Ed.  92.  And  in  another 
to  the  Federal  Circuit  Court  at  the  instance  of  the  Virginia  State  court  to 
compel  the  removal  of  a  cause  of  which  the  Federal  court  had  improperly 
taken  cognizance,  in  to  the  State  tribunal.  Virginia  v.  Rives,  100  U.  S. 
313,  25  L.  Ed.  667.  But  it  will  not  issue  to  control  the  discretion  of  a 
lower  court.  Ex  parte  Newman,  14  Wall.  166,  20  L.  Ed.  879.  In  that  case 
Mr.  Justice  Clifford,  speaking  for  the  court,  thus  states  the  rule :  "Applica- 
tions for  mandamus  to  a  subordinate  court  are  warranted  by  the  principles 
and  usages  of  law  in  cases  where  the  subordinate  court,  having  jurisdiction 
of  a  case,  refuses  to  hear  and  decide  the  controversy,  or  where  such  a 
court,  having  heard  the  causes,  refuses  to  render  judgment  or  enter  a  de- 
cree in  the  case ;  but  the  principles  and  usages  of  law  do  not  warrant  man- 

/  damns  to  re-examine  a  judgment  or  decree  of  a  subordinate  court  in  any 
case,  nor  will  the  writ  be  issued  to  direct  what  judgment  or  decree  such 
a  court  shall  render  in  any  pending  case,  nor  will  the  writ  be  issued  in  any 
case  if  the  party  aggrieved  may  have  a  remedy  by  writ  of  error  or  appeal, 
as  the  only  office  of  the  writ  when  issued  to  a  subordinate  court  is  to  direct 
the  performance  of  a  ministerial  act,  or  to  command  the  court  to  act  in  a 
case  where  the  court  has  jurisdiction  and  refuses  to  act,  but  the  super- 
visory court  will  never  prescribe  what  the  decision  of  the  subordinate 
court  shall  be,  nor  will  the  supervisory  court  interfere  in  any  way  to  con^ 
trol  the  judgment  or  discretion  of  the  subordinate  court  in  disposing  of 
the  controversy."  In  a  learned  opinion  in  Virginia  v.  Rives,  100  U.  S.  313, 
329,  25  L.  Ed.  673,  Mr.  Justice  Field  also  enters  into  a  discussion  of  this 
point,  and  holds  that  'It  is  well  settled  that  the  writ  of  mandamus  will 
issue  to  correct  the' action  of  subordinate  or  inferior  courts  or  judicial 
officers,  where  they  have  exceeded  their  jurisdiction  and  there  is  no  other 
remedy.  *It  issues,'  says  Blackstone,  'to  the  judges  of  any  inferior  court, 
commanding  them  to  do  justice  according  to  the  powers  of  their  office, 
whenever  the  same  is  delayed.  For  it  is  the  peculiar  business  of  the  Court 
of  King's  Bench  to  superintend  all  inferior  tribunals,  and  therein  to  en- 


Ul  MARBURY  v.  MADISON.  1  Cr.  137-180 

force  the  due  exercise  of  all  those  judicial  or  ministerial  powers  with  which 
the  crown  or  the  legislature  have  invested  them;  and  this  not  only  by  re- 
straining their  excesses,  but  also  by  quickening  their  negligence  and  obvi- 
ating the  denial  of  justice/  3  Bl.  Com.  110."  Accordingly  it  was  there 
held  the  proper  remedy  to  reinstall  the  jurisdiction  of  a  State  court  where 
a  Federal  Circuit  Court  had  improperly  allowed  a  removal. 

Although  concerned  primarily  with  the  question  of  jurisdiction  to  issue 
mandamus,  the  reasoning  of  the  leading  case  extends  equally  to  the  writ 
of  habeas  corpus;  and  the  issuance  of  that  writ  by  the  Supreme  Court, 
except  in  those  cases  in  which  it  has  original  jurisdiction,  must  be  justified 
as  an  exercise  of  appellate  jurisdiction.  Ex  parte  BoUman,  4  Cr.  100,  lOt), 
2  L.  Ed.  563,  665;  Ex  parte  Watkins,  7  Pet.  572,  8  L.  Ed.  788;  In  re  Mat- 
ter of  Metzger,  5  How.  191,  12  L.  Ed.  Ill ;  In  re  Kaine,  14  How.  119,  128, 
14  L.  Ed.  351,  355;  Ex  parte  Wells,  18  How.  317,  15  L.  Ed.  426;  Ex  parte 
Yerger,  8  Wall.  97,  19  L.  Ed.  336;  Ex  parte  Virginia,  100  U.  S.  341,  25 
L.  Ed.  677;  Ex  parte  Clarke,  100  U.  S.  408,  25  L.  Ed.  728;  In  re  McDonald, 
16  Fed.  Cas.  25.  It  has,  however,  uniformly  been  held  that  the  issuance 
of  this  writ  does  involve  an  exercise  of  appellate  jurisdiction.  'It  is 
a  revision  of  a  decision  of  an  inferior  court  by  which  a  citizen  has  been 
committed  to  jail,"  observed  Chief  Justice  Marshall  in  one  of  the  earliest 
of  these  cases.  "It  has  been  demonstrated  at  the  bar  that  the  question 
brought  forward  on  habeas  corpus  is  always  distinct  from  that  which  is 
involved  in  the  cause  itself.  The  question  whether  the  individual  shall  b^ 
imprisoned  is  always  distinct  from  the  question  whether  he  shall  be  con- 
victed or  acquitted  of  the  charge  on  which  he  is  to  be  tried,'  and,  therefore, 
these  questions  are  separated  and  may  be  decided  in  different  courts.  The' 
decision  that  the  individual  shall  be  imprisoned  must  always  precede  the 
application  for  a  writ  of  habeas  corpus,  and  this  writ  must  always  be  for 
the  purpose  of  revising  that  decision,  and,  therefore,  appellate  in  its  na- 
ture." Ex  parte  Bollman,  4  Cr.  101,  4  L.  Ed.  563.  In  a  later  case  Mr. 
Justice  McLean  was  of  opinion  that  "there  is  some  refinement  in  denomi- 
nating that  an  appellate  power  which  is  exercised  through  the  instrumen- 
tality of  a  writ  of  habeas  corpus"  (In  re  Metzger,  5  How.  191,  12  L.  Ed. 
Ill);  though  he  makes  no  question  but  that  such  was  the  settled  rule  of 
law.  The  case  decided  that  the  writ  would  not  issue  to  inquire  into  an 
order  of  commitment  made  by  a  district  judge  at  chambers,  as  the  court 
had  no  appellate  sux)ervision  over  such  an  order;  but  the  anithority  of  the 
case  "has  been  much  shaken."  In  re  Kaine,  14  How.  103,  14  L.  Ed.  345; 
Ex  parte  Yerger,  8  Wall.  85,  19  L.  Ed.  332;  Ex  parte  Virginia,  100  U.  S. 
341,  25  L.  Ed.  677.  And  it  seems  to  be  regarded  as  sporadic  and  not  in 
harmony  with  the  general  tendency  of  the  cases  which  rather  incline  to  an 
extension  of  the  jurisdiction  to  issue  habeas  corpus  to  all  commitments 
made  by  officers  exercising  any  part  of  the  judicial  power  of  the  United 
States. 

In  a  number  of  cases  habeas  corpus  has  issued  to  the  Circuit  Courts. 
Ex  parte  Wells,  18  How.  317,  15  L.  Ed.  426 ;  Ex  parte  Watkins,  7  Pet.  572, 
8  L.  Ed.  788;  Ex  parte  Yerger,  8  Wall.  85,  19  L.  Ed.  332;  Ex  parte  Clarke, 
100  U.  S.  408,  25  L.  Ed.  728.    The  writ  of  habeas  corpus  may  even  issue 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  112 

in  cases  not  ma4^  cognizable  by  writ  of  error  (Ex  parte  Clarke,  100  U.  S. 
408,  25  L.  Ed.  728) ;  or  appeal  (Ex  parte  Yerger,  8  Wall.  85,  19  L.  Ed. 
332).  It  has  also  issued  "in  favor  of  liberty"  where  error  would  admit- 
tedly have  been  a  more  appropriate  method  of  procuring  a  review.  Ex 
parte  Virginia,  100  U.  S.  343,  25  L.  Ed.  B7B.  And  it  has  been  held  that  a 
writ  issued  returnable  to  a  justice  of  tne  Supreme  Court  might  be  tried 
by  the  whole  court  if  it  was  a  proper  case  for  the  exercise  of  its  appellate 
jurisdiction.    Ex  parte  Clarke,  100  U.  S.  408,  25  L.  Ed.  728. 

In  denying  the  argument  that  certiorari  is  coextensive  with  mandamus, 
the  Supreme  Court  of  New  Jersey  remarked  in  an  early  case  that  whila  the 
right  to  mandamus  the  Secretary  of  State  was  decided  by  the  leading  case, 
it  could  scarcely  be  held  that  certiorari  would  have  been  a  proper  method 
of  reviewing  the  action  of  that  officer,  had  he  erroneously  granted*  Mr. 
Marbury's  commission.    Whitehead  v.  Gray,  12  N.  J.  L.  36,  40. 

As  has  been  seen  above,  Marbury  v.  Madison  settled  the  proposition  that 
the  original  jurisdiction  of  the  Federal  Supreme  Court  cannot  be  enlarged 
by  Congress.  The  reasoning  of  the  case  goes  further,  however,  and  denies 
the  right  of  Congress  to  give  appellate  jurisdiction  where  the  Constitution 
confers  original. 

This  second  proposition  the  courts  have  had  to  modify  and  explain.  A 
case  came  before  the  Supreme  Court,  on  appeal,  a  few  years  after  the  de- 
cision in  Marbury  v.  Madison,  in  which  the  State  of  Virginia  and  one  of 
its  citizens  were  parties,  the  question  at  issue  involvii^g  the  construction 
of  an  act  of  Congress.  It  was  urged  that  as  the>  Supreme  Court  had  origi- 
nal jurisdiction  in  cases  in  which  a  State  was  a  party,  this  excluded  its 
appellate  jurisdiction.  But  the  Court  held  otherwise,  and  decided  that  the 
original  jurisdiction  of  the  Supreme  Court  in  cases  in  which  a  State  was 
a  party  referred  only  to  those  cases  in  which  the  Sup];pme  Court  obtained 
jurisdiction , by  reason  of  the  character  of  the  parties,  and  not  at  all  to 
those  cases  in  which  the  Federal  jurisdiction  attached,  because  the  question 
involved  arose  under  the  Constitution,-  treaties  Or  laws  of  the  United 
States.  Referring  to  the  Constitution,  based  upon  Marbury  v.  Madison, 
the  court,  speaking  again  by  Chief  Justice  Marshall,  observed :  "The  truth 
is  that  where  the  words  confer  only  appellate  jurisdiction,  original  juris- 
diction is  most  clearly  not  given;  but  where  the  words  admit  of  appellate 
jurisdiction,  the  power  to  take  cognizance  of  the  suit  originally,  does  not 
necessarily  negative  the  power  to  decide  upon  it  on  an  appeal,  if  it  may 
originate  in  a  different  court. 

"It  is,  we  think,  apparent,  that  to  give  this  distributive  clause  the  inter- 
pretation contended  for,  to  give  to  its  affirmative  words  a  negative  opera- 
tion, in  every  possible  case,  would  in  some  instances  defeat  the  obvious 
intention  of  the  article.  .  .  .  The  court  may  imply  a  negative  from  affirma- 
tive words  where  the  implication  promotes,  not  where  it  defeats  the  in- 
tention." Cohens  v.  Virginia,  6  Wheat.  397,  398,  5  L.  Ed.  289,  11  Wheat. 
472,  6  L.  Ed.  523.  Again,  speaking  directly  of  the  leading  case,  the  chief 
justice  observes :  "It  is  a  maxim  not  to  be  disregarded  that  general  expres- 
sions in  every  opinion  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used.    If  they  go  beyond  the  case  they  may  be  re- 


/ 


* 
I 


U3  MABBURY  v.  MADISON.  1  Cr.  137-180 

speeted,  but  ought  not  to  control  the  judgment  in  a  subsequent  suit  when 
the  very  pQJnt  is  presented  for  decision.  The  reason  of  this  maxim  is  ob- 
vious. The  question  actually  before  the  court  is  investigated  with  care 
and  considered  in  its  full  extent.  Other  principles  which  may  serve  to 
illustrate  it  are  considered  in  their  relation  to  the  case  decided,  but  their  \ 

possible  bearing  on  all  other  cases  is  seldom  completely  investigated." 

Latei*  cases  have  not,  however,  left  even  this  much  of  the/ doctrine  of  to 
exclusive  original  jurisdiction.  The  judiciary  act  of  1789,  invested  the 
District  Courts  of  the  United  States  with  "jurisdiction  exclusively  of  the 
courts  of  the  several  States,  of  dll  suits  against  consuls  or  vice-consuls." 
And  this  provision  was  early  declared  constitutional,  notwithstanding  the 
fact  that  the  Constitution  confers  upon  the  Supreme  Court  original  juris- 
diction. Qittings  V.  Crawford,  Taney,  1,  Fed.  Cas.  5465;  see,  also,  United 
States  y.  Ravara,  2  Dall.  297,  1  L.  Ed.  S88;  State  v.  De  La  Foret,  2  Nott 
&  McC.  217,  224;  Davis  v.  Packard,  7  Pet.  284,  8  L.  Ed.  687,  11  Wheat.  472, 
6  L.  Ed.  523;  Bors  v.  Preston,  111  U.  S.  258,  28  L.  Ed.  421,  4  Sup.  Ct.  410; 
contra.  Commonwealth  v.  Kosloff,  5  Seig.  &  R.  545,  549.  In  Gittings  v. 
Crawford,  Chief  Justice  Taney  observed,  after  an  elaborate  review  of  the 
authorities,  that  "the  true  rule  in  this  case  is,  I  think,  the  rule  which  is 
constantly  applied  to  ordinary  acts  of  legislation  in  which  the  grant  of 
jurisdiction  over  a  certain  subject  matter  to  one  court  does  not,  of  itself, 
imply  that  that  jurisdiction  is  to  be  exclusive.  In  the  clause  in  question 
there  is  nothing  but  mere  affirmative  words  of  grant,  and  none  that  import 
a  design  to  exclude  the  subordinate  jurisdiction  of  other  courts  of  the 
United  States  on  the  same  subject  matter."  Taney,  1,  9,  Fed.  Cas.  5465. 
And  the  following  significant  language  is  used  by  Chief  Justice  Waite  in 
Ames  V.  Kansas:  "In  view  of  the  practical  construction  put  on  this  provi- 
sion of  the  Constitution  by  Congress  at  the  very  moment  of  the  organiza- 
tion of  the  government,  and  of  the  significant  fact  that  from  1789  until  now 
no  court  of  the  United  States  has  ever  in  its  actual  adjudications  deter- 
mined to  the  contrary,  we  are  unable  to  say  that  it  is  not  within  the  power 
of  Congress  to  grant  to  the  inferior  courts  of  the  United  States  jurisdiction 
in  cases  where  the  Supreme  Court  has  been  vested  by  the  Constitution 
with  original  jurisdiction.    It  rests  with  the  legislative  department  of  the  » 

government  to  say  to  what  extent  such  grants  shall  be  made,  and  it  may 
safely  be  ^sumed  that  nothing  will  ever  be  done  to  encroach  upon  the  high 
privileges  of  those  for  whose  protection  the  constitutional  provision  was 
intended.  At  any  rate,  we  are  unwilling  to  say  that  the  power  to  Inake 
the  grant  does  not  exist."    Ill  U.  S.  469,  28  L.  Ed.  490,  4  Sup.  Ct.  447.  ^ 

Neither  does  the  grant  to  the  Supreme  Court  of  original  jurisdiction  in 
eases  in  which  a  State  is  a  party  preclude  the  Supreme  Court  of  a  State 
from  taking  jurisdiction  of  a  case  between  a  state  and  a  citizen  of  another 
State.  Delafield  v.  State  of  Illinois,  26  Wend.  215 ;  affirmed  in  2  Hill,  168. 
Nor  does  the  fact  that  the  Supreme  Court  is  given  appellate  jurisdiction 
in  eases  in  which  the  United  States  is  a  party  preclude  the  United  States 
from  coming  in  as  a  party  in  an  original  controversy  between  two  States 
before  the  Federal  Supreme  Court.  Florida  v.  Georgia,  17  How.  505,  509, 
15  L.  Ed.  199,  201. 

1—8 
I 


L  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  114 

It  thus  appears,  that  the  proposition  that  the  original  jurisdiction  of  the 
Supreme  Court  is  exclusive  practically  fails.  This  conclusion,  however,  in 
no  wise  affects  the  decision  in  Marbury  v.  Madison,  though  it  fixes  impor- 
tant limitations  upon  the  language  used — limitations  which  Chief  Justice 
/  Marshall  was  himself  the  first  to  point  out. 

Not  unnaturally  the  State  courts  have  upon  occasion  found  a  helpful 
analogy  in  Marbury  v.  Madison  when  confronted  with  similar  jurisdic- 
tional questions  in  the  interpretation  of  their  own  Constitutions  and  laws. 
Thus,  in  deciding  as  to  the  right  to  issue  mandamus  and  habeas  corpus  in 
the  exercise  of  their  original  jurisdiction,  the  highest  courts  of  the  States 
have  in  several  instances  resorted  to  the  reasoning  and  followed  the  conclu- 
sions set  forth  in  the  leading  case.  The  provision*  of  the  first  Constitu- 
tion and  statute  of  California  upon  the  subject  of  the  State  writs, was 
identical  with  that  of  the  national  Constitution  and  laws,  and  the  State 
court  accordingly  followed  Marbury  v.  Madison  in  holding  that  mandamus 
to  an  officer  of  another  department  of  the  government  was  an  exercise  of 
original  jurisdiction  and  inadmissible,  but  that  it  might  properly  be  di- 
rected to  a  judge  of  a  subordinate  court.  People  v.  Turner,  1  Cal.  146,  52 
Am.  Dec.  298.  Subsequently,  this  law  was  changed,  and  under  the  second 
and  third  Constitutions  the  court  had  power  to  issue  the  prerogative  or 
State  writs  in  original  causes.  In  thus  deciding  the  construction  of  the 
third  Constitution  the  court  was  divided,  one  of  the  judges  holding  that 
it  was  intended  to  aitthorize  the  issuance  of  these  writs  only  in  aid  of  the 
court's  appellate  jurisdiction,  and  citing  the  leading  case  to  the  point  that 
mandamus  is  often  used  as  an  incident  of  appellate  jurisdiction.  Hyatt 
V.  Allen,  54  Cal.  353,  364.  Again  it  is  cited  in  several  cases  to  the  point 
that  the  right  to  issue  the  common-law  writs  is  one  of  the  inherent  powers 
of  an  appellate  court,  and,  therefore,  that  the  constitutional  grant  of  power 
to  issue  them  must  mean  a  grant  of  such  power  in  the  exercise  of  original 
jurisdiction.  Wheeler  v.  N.  C.  Irrigation  Co.,  9  Colo.  251,  11^  Pac.  104 ; 
State  V.  Archibald,  5  N.  D.  362,  66  N.  W.  236;  and  see  Attorney  General 
V.  Railroad  Co.,  35  Wis.  515. 

Elsewhere  it  has  been  held  that  the  mere  grant  of  appellate  jurisdiction 
to  a  court  would  "give  it  a  right  to  issue  the  common-law  writs,"  and  that 
as  appellate  jurisdiction  "revises  and  corrects"  a  cause  in  a  lower  court, 
mandamus  could  issue  in  that  limited  class  of  cases  only.  Ex  parte  White, 
4  Fla.  171;  Jared  v.  Hill,  1  Blackf.  155,  156;  see,  also,  Fannin  v.  High- 
tower,  9  Tex.  Civ.  App.  298,  29  S.  W.  190 ;  Dobson  v.  Westheimer,  5  Wyo. 
36,  36  Pac.  626.  By  a  later  Constitution  the  Supreme  Court  of  Florida 
was  given  this  right.  State  v.  Gleason,  12  Fla.  190,  206.  That  courts  of 
appellate  jurisdiction  have  no  power  to  issue  mandamus  in  original  causes 
was  deemed  by  the  Supreme  Court  of  Iowa  to  have  been  settled  by  Mar- 
bury V.  Madison,  and  accordingly  it  was  held  that  the  court  had  not  the 
power  to  mandamus  the  board  of  election  commissioners.  United  States 
ex  rel.  V.  Commissioners  of  Dubuque  Co.,  Morr.  (Iowa)  36.  To  the  same 
effect  is  a  Virginia  ease.  Sharpe  v.  Robertson,  5  Gratt.  636.  Somewhat 
similarly  the  Texas  Court  of  Civil  Appeals,  having  appellate  jurisdiction 
only,  refused  to  mandamus  a  lower  court  to  proceed  with  the  trial  of  a 


115  MARBURY  v.  MADISON.  1  Cr.  137-180 

eaQse,  holding  that  as  the  refusal  was  interlocutory  and  not  appealable, 
mandamus  in  such  a  case  would  be  an  exercise  of  original  jurisdiction. 
Fannin  v.  Hightower,  9  Tex.  Civ.  App.  298,  29  S.  W.  190.  But  the  Su- 
preme Court  of  Texas  has  affirmed  the  validity  of  a  statute  providing  that 
the  Court  of  Civil  Appeals  might  certify  to  it  certain  questions  for  adjudi- 
cation without  first  deciding  upon  them;  although  Stayton,  C.  J.,  dissent- 
ing, relied  upon  the  leading  case  to  the  contrary.  Darnell  v.  Lyon,  85  Tex. 
470,  22  S,  W.  311.  And  the  Supreme  Court  of  Wisconsin,  in  an  early  case, 
held  that  it  had  no  original  jurisdiction  to  issue  a  mandamus  under  a  Con- 
stitution conferring  upon  it  appellate  jurisdiction  only,  even  though  an- 
other section  gave  it  power  to  issue  the  common-law  writs.  State  ex  rel. 
V.  Farwell,  3  Pinn.  393,  416.  Later,  however,  the  court  was  given  express 
power  to  issue  the  common-law  writs  in  all  cases  appellate  and  original. 
Attorney  Qeneral  v.  Blossom,  1  Wis.  317,  331;  see,  generally  Taylor  v. 
Governor,  1  Ark.  23. 

The  proposition  that  courts  of  appellate  jurisdiction  have  no  power  to 
issne  writs  in  original  causes  merges  itself  in  the  broader  proposition  that 
a  court  of  purely  appellate  jurisdiction  may  not  exercise  original  jurisdic- 
tion at  all.  To  this  point  Marbury  v.  Madison  is  cited  in  several  cases. 
Ex  parte  Floyd,  40  Ala.  120;  Chumasero  v.  Potts,  2  Mont.  242,  292;  Daniel 
V.  Ct.  of  Warren,  1  Bibb  (Ky.),  496,  5,00. 

When  State  may  invoke  original  jurisdiction  of  United  States  Supreme 
Court.    Kote,  Ann.  Gas.  1912G,  529. 

It  is  the  essential  ciiterlon  of  appellate  Jurisdiction  that  it  rerviaea  and 
corrects  the  proceedings  in  a  cause  already  instituted,  and  does  not  create  that 
cause.  The  issuance  of  mandamus  by  the  Supreme  Court  against  the  Secretary- 
of  State  would  be  the  exercise  of  original  not  appellate  Jurisdiction^ 

Approved  in  Ex  parte  Moran,  144  Fed.\696,  determining  power  of  Circuit 
Court  of  Appeals  to  issue  habeas  corpus  to  inquire  into  power  of  Oklahoina 
court  in  capital  cases;  State  v.  Nixon,  232  Mo.  510,  134  S.  W.  542;  court 
having  jurisdiction  on  appeal  of  cases  arising  within  territorial  limits  can- 
not hear  cases  arising  beyond  these  limits;  In  re  Peterson's  Estate,  22 
N-  D.  506,  134  N.  W.  763,  statutes  vesting  in  District  Court  jurisdiction  to 
try  probate  cases  de  novo,  not  violation  of  constitutional  grant  to  County 
Courts  of  exclusive  original  jurisdiction  of  probate  matters;  State  v. 
Ausherman,  11  WJyo.  425,  72  Pac.  202,  upholding  jurisdiction  of  Supreme 
Court  to  issue  prohibition  to  restrain  action  of  inferior  court  in  excess  of 
its  jurisdiction. 

The  influence  of  the  principle  laid  down  in  the  jxrincipal  case  to  the  effect 
that  afitenative  words  must  often  be  understood  in  a  negative  or  exclusive 
sense  in  order  to  carry  out  the  intended  meaning  is  apparent  in  other  con- 
nections than  in  questions  arising  out  of  the  construction  of  the  national 
Constitution  by  the  Federal  courts.  It  has  been  applied  in  the  construc- 
tion of  provisions  of  the  State  Constitutions.  Thus  the  Constitution  of 
Florida  conferred  upon  the  Supreme  Court  power  to  issue  writs  of  prohi- 
bition, and  the  same  power  upon  the  County  Court  when  necessary  to  the 
complete  exercise  of  its  jurisdiction.    Under  the  foregoing  rule  this  was 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  116 

held  to  exclude  the  right  of  the  County  Court  to  issue  the  writ  as  part  of 
its  original  jurisdiction.  Singer  Mfg.  Co.  v.  Spratt,  20  Fla.  125.  The 
organic  law  of  Nebraska  extends  the  original  jurisdiction  of  the  Supreme 
Court  to  mandamus,  quo  warranto  and  habeas  corpus,  and  this  was  held 
to  negative  original  jurisdiction  to  issue  prohibition.  State  v.  Hall,  47 
Neb.  583,  66  N.  W.  643.  The  Constitution  of  Nevada  conferred  upon  the 
Supreme  Court  appellate  jurisdiction  in  a  number  of  cases,  and  the  court 
followed  Marbury  v.  Madison  in  holding  this  an  exclusion  of  original  juris- 
diction. Lake  v.  Lake,  17  Nev.  238,  239,  30  Pac.  880.  To  the  same  effect 
was  a  decision  of  the  Supreme  Court  of  New  Mexico  in  a  case  involving 
the  construction  of  the  organic  law  of  that  territory,  and  the  court  held 
that  it  had  not  power  to  issue  mandamus  in  original  causes.  Territory  v. 
Ortiz,  1  N.  M.  13.  The  Constitution  of  Rhode  Island  vested  the  judicial 
power  in  the  courfs  of  the  State,  and  this  was  held  under  the  above  rule 
to  imply  a  prohibition  against  the  exercise  of  such  power  by  the  legisla- 
ture. A  law  setting  aside  certain  judgments  was,  therefore,  declared  in- 
valid. Taylor  v.  Place,  4  R.  I.  367,  358.  The  Supreme  Court  of  Utah  has 
also  invoked  this  rule  in  holding  that  thexrganic  law  by  implication  pro- 
hibited to  it  the  issuance  of  injunction  in  original  proceedings.  Godbe  v. 
Salt  Lake  City,  1  Utah,  78.  And  the  Supreme  Court  of  Colorado  Territory 
recognized  and  followed  this  principle  in  holding  that  the  organic  law  did 
not  authorize  a  legislative  provision  for  appeals  from  Probate  to  District 
Courts.     Cass  v.  Davis,  1  Colo.  48. 

This  rule  of  construction  has  also  been  applied  in  other  connections.  It 
has  been  held  that  a  statute  providing  for  the  review  of  a  case  by  app>eal 
impliedly  excluded  all  other  means  of  bringing  it  before  an  appellate  tri- 
bunal. Thompson  v.  Lea,  28  Ala.  469,  463.  A  court  rule  permitting  a 
rehearing  after  decree  entered,  within  ten  days  after  such  entry,  prohibits 
such  action  at  any  later  time.  The  Illinois,  1  Brown  Adm.  13,  30,  Fed. 
Cas.  13,602.  The  exemption  of  certain  things  from  the  operation  of  a  stat- 
ute of  limitation  during  a  certain  period  also  carries  the  implication  that 
the  statute  is  to  operate  fully  as  to  all  matters  not  excluded.  Coleman  v. 
Holmes,  44  Ala.  124,  129,  4  Am.  Rep.  121.  When  a  statute  requires  a 
judge  to  mark  all  requests  for  charge  to  a  jury  "given"  or  "refused,"  it  is 
inadmissible  for  the  judge  to  insert  qualifying  words.  Lyon  v.  Kent,  45 
Ala.  656,  665.  Finally,  the  rule  has  been  invoked  in  holding  that  a  stat- 
ute  granting  a  certain  remedy  against  the  official  bond  of  a  sheriff  pro- 
hibits and  repeals  a  certain  other  remedy  granted  by  an  earlier  law. 
Shaeffer  v.  Jack,  14  Serg.  &  R.  429. 

The  cases  discussed  above,  in  which  mandamus  and  habeas  corpus  have 
issued  from  the  Supreme  Court,  serve  in  part  to  illustrate  this  definition 
of  appellate  jurisdiction,  and  it  seems  well  settled  on  the  authority  of 
Marbury  v.  Madison  that  mandamus  or  habeas  corpus  to  lower  courts 
awarded  according  to  the  usages  and  practices  of  law,  is  generally  an 
exercise  of  appellate  jurisdiction.  See,  in  addition  to  the  cases  discussed 
above,  Ex  parte  White,  4  Fla.  166,  171;  People  ex  rel.  v.  Bacon,  18  Mich. 
247,  263 ;  People  ex  rel.  v.  Spiers,  4  Utah,  387,  10  Pac.  610 ;  State  v.  Ber- 
mudez,  14  La.  478,  482.    Though  an  early  case  falls  into  the  error  of  hold- 


117  MABBURY  v.  MADISON.  1  Cr.  137-180 

ing  that  mandamns  can  never  be  issued  by  a  court  of  appellate  jurisdiction 
at  all.    Howell  v.  Crutchfield,  Hempst.  100,  Fed.  Cas.  6778a. 

In  addition  there  are  other  cases  among  the  reports  in  which  this  defi- 
nition has  been  applied.  Thus  it  has  been  held  by  a  divided  court  that  the 
issuance  of  an  injunction  by  the  Supreme  Court  in  a  case  where  the  Cir- 
cuit Court  was  divided  in  opinion  as  to  its  propriety  is  an  exercise  of 
appellate  jurisdiction.  Mr.  Justice  Catron  dissenting,  defined  appellate 
jurisdiction  as  meaning. "to  re-examine  and  to  reverse  or  aflSrm  the  judg- 
ment, sentence,  order  or  decree  of  an  inferior  court — ^to  pass  on  that  which 
has  been  adjudged."  United  States  v.  Chicago,  7  How.  197,  12  L.  Ed.  666. 
A  revision  of  the  acts  of  an  officer  not  exercising  a  part  of  the  judicial 
power  of  the  United  States  is  not  an  exercise  of  the  appellate  jurisdiction 
of  the  national  Supreme  Court.  In  re  Kaine,  14  How.  119,  128,  14  L.  Ed. 
351,  355.  It  is  not  sufficient  that  there  has  been  a  decision  by  some  offi- 
cer, but  it  must  be  one  with  judicial  authority  and  acting  in  a  judicial 
capacity.  Dunn  v.  State,  2  Ark.  229,  257,  35  Am.  Dec.  70.  An  act  pro- 
viding for  an  appeal  from  the  decision  of  a  county  board  of  clerks  author- 
ized to  appraise  taxes,  to  a  Supreme  Court  having  only  appellate  jurisdic- 
tion, is,  therefore,  unconstitutional,  since  such  a  board  exercises  no  part 
of  the  judicial  power.  Auditor  v.  Atchison  etc.  R.  R.,  6  Kan.  500,  506, 
7  Am.  Bep.  578.  And  to  mandamus  a  bqard  of  penitentiary  inspectors 
would  be  to  exercise  an  original  jurisdiction.  Ex  parte  Allis,  12  Ark.  105. 
Courts  of  law  do  iu>t  themselves  always  and  in  all  jurisdictions  act  in  a 
judicial  capacity;  but  it  is  only  when  they  are  so  acting  that  mandamus 
to  control  those  acts  is  an  exercise  of  appellate  jurisdiction.  Lavergne's 
Heirs  v.  Elkins'  Heirs,  17  La.  227.  Again,  where  the  tribunal  to  be  man- 
damused  is  not  properly  a  subordinate  court,  but  a  distinct  tribunal,  such 
as  a  court  of  chancery,  mandamus  from  the  highest  law  court  has  been 
held  original  aa^pot  appellate  jurisdiction.  Sharpe  v.  Robertson,  5  Gratt. 
636.  And  it  haftjibeen  held  in  reliance  upon  this  principle  that  it  would 
not  be  an  exercia#.  of  appellate  jurisdiction  to  consider  a  cause  brought  up 
by  appeal  from  a  pro  forma  decree  entered  below  by  consent.  Darden  v. 
Lines,  2  Fla.  572. 

It  would  be  error  for  a  court  having  only  appellate  jurisdiction  to  allow 
someone  not  a  party  below  to  prosecute  a  writ  of  error  (Arnett  v.  McCain, 
47  Ark.  412, 1  S.  W.  873) ;  or  to  substitute  upon  a  mandamus  the  successor 
in  office  of  the  original  defendant.  United  States  v.  Boutwell,  17  Wall. 
609,  21  L.  Ed.  722,  3  MacAr.  177,  178.  But  it  is  not  an  exercise  of  origi- 
nal jurisdiction  to  mandamus  a  subordinate  judge  to  restore  certain  attor- 
neys to  the  right  to  practice,  of  which  they  had  been  deprived.  People 
V.  Turner,  1  Cal.  143,  146,  147,  52  Am.  Dec.  298.  Or  to  compel  a  lower 
court  to  take  jurisdiction  and  proceed  in  a  proper  case.  State  v.  Ber- 
mudez,  14  La.  478,  482.  A  court  which  passes  upon  the  propriety  of  the 
action  of  an  inferior  tribunal  which  dismissed  a  suit  on  the  ground  that 
it  had  no  jurisdiction  is  exercising  an  appellate  and  not  an  original  juris- 
diction.   Nichol  V.  Patterson,  4  Ohio,  200,  203. 

The  leading  case  has  also  had  8on\.e  further  influence  as  authority  for 
general  points  in  the  matter  of  the  jurisdiction  of  Federal  courts.    Thus 


1  Cr.  137-180  iSrOTES  ON  U.  S.  REPORTS.  118 

it  is  cited  to  the  point  that  for  the  appellate  jurisdiction  of  the  Supreme 
Court  to  attach  the  Constitution  must  give  a  capacity  to  take  and  an  act  of 
Congress  supply  the  requisite  authority.  Daniels  v.  Railroad  Co.,  3  Wall. 
254,  18  L.  Ed.  226.  And  again,  to  the  point  that  the  judicial  power  of  the 
United  States  cannot  be  enlarged  by  Congress.  Ex  parte  Clarke,  100  U.  S. 
408,  25  L.  Ed.  728.  It  is  cited  in  the  Circuit  Court  to  the  point  that  Fed- 
eral courts  are  courts  of  limited  jurisdiction,  which  must  be  exercised  in 
the  mode  pointed  out  by  the  Constitution;  that  acts  of  Congress  directing 
differently  are  void;  and  that  the  enumeration  of  cases  in  which  the  Fed- 
eral courts  may  act  is  exclusive  of  all  others.  Baker  v.  Biddle,  Baldw. 
394,  406,  Fed.  Cas.  764.  And  in  holding  a  case  arising  under  the  national 
bankruptcy  laws,  removable  to  the  Federal  court,  it  is  cited  as  authority 
for  the  proposition  that  a  case  or  suit  involving  a  question  under  the 
Constitution,  treaties  or  laws  of  the  United  States, 'is  cognizable  in  the 
courts  of  the  nation.  Connor  v.  Scott,  4  Dill.  242,  246,  Fed.  Cas.  3119. 
The  Supreme  Court  of  New  Hampshire  also  cites  Marbury  v.  Madison  to 
the  point  that  cases  arising  under  the  laws  of  the  United  States  are  ''such 
as  grow  out  of  the  legislation  of  Congress  within  the  scope  of  its  consti- 
tutional authority,  whether  they  constitute  the  right,  privilege  or  claim, 
or  protection  or  defense  of  a  party  in  whole  or  in  part  by  whom  they  are 
asserted.''  Beavins'  Petition^  33  N.  H.  89,  91.  In  this  case  the  court  up- 
held a  law  providing  that  naturalization  proceedings  should  be  cognizable 
only  in  the  Court  of  Common  Pleas. 

There  remi^n  under  this  topic  a  few  citations  which  are  of  a  general 
or  miscellaneous  nature  and  illustrate  no  one  of  the  points  upon  which  the 
leading,  case  lays  especial  emphasis.  In  holding  that  an  action  appealed 
to  an  appellate  court  might  not  be  remanded  to  chancery  again,  the 
Supreme  Court  of  Alabama  cites  Marbury  v.  Madison  to  the  point  that  it 
had  no  inherent  power  to  grant  such  a  motion.  Sanders  ▼.  Cabaniss,  43 
Ala.  190.  Marbury  v.  Madison  is 'cited  to  the  point  that  appellate  jurisdic- 
tion revises  and  corrects  proceedings  in  a  cause  already  instituted,  in  a 
case  holding  that  a  law  prohibiting  appeals  in  certain  actions  under 
twenty-five  dollars  did  not  conflict  with  the  constitutional  provision  that 
the  Supreme  Court  was  to  have  appellate  jurisdiction  of  all  cases — ^it  was 
pointed  out  that  there  was  still  a  method  of  review  by  certiorari.  Tiemey 
V.  Dodge,  9  Minn.  170.  Another  case  cites  it  as  a  general  authority  on 
questions  of  jurisdiction,  and  yet  another  as  defining  the  jurisdiction  of 
the  Federal  courts.  Connor  v.  Scott,  4  Dill.  246,  Fed.  Cas.  3119;  White 
V.  Kendrick,  1  Brev.  (S.  C.)  473.  In  holding  a  provision  of  the  judiciary 
act  of  1789  void,  the  Supreme  Court  of  Virginia  remarked  that  the 
national  Supreme  Court  had  itself  found  the  act  invalid  in  another  par- 
ticular. Hunter  v.  Martin,  4  Munf.  28.  Again,  the  leading  case  is  cited 
as  illustrating  the  point  that  there  is  no  general  principle  forbidding  the 
grant  of  additional  jurisdiction  to  a  court  created  by  a  fundamental  law, 
and  that  such  a  principle  must  be  inferred  from  something  else  in  the 
Constitution  indicating  an  intention  not  to  allow  the  increased  jurisdiction. 
Ex  parte  Towles,  48  Tex.  452.  In  holding  that  an  act  of  the  legislature, 
authorizing  the  Court  of  Civil  Appeals  to  certify  questions  to  the  Supreme 


119  MARBURY  v.  MADISON.  1  Cr.  137-180 

Court  for  decision  was  invalid,  becanse  the  Constitution  gave  to  the 
Supreme  Court  only  appellate  jurisdiction,  and  this  was  not  an  exercise  of 
appellate  jurisdiction,  Stayton,  C.  J.,  in  his  opinion  in  the  foregoing  case, 
quotes  at  length,  from  Marbury  v.  Madison  in  defining  apx)ellate  jurisdic- 
.  tion.  And  again,  the  Mississippi  Supreme  Court  remarked  the  limitations 
upon  the  original  jurisdiction  of  the  Federal  Supreme  Court  as  decided  in 
Marbury  v.  Madison  in  holding  a  grant '  of  original  jurisdiction  by  the 
legislature  of  that  State,  not  invalid.  Blanchard  v.  Buckholt,  Walk. 
(Miss.)  64. 

Original  jurisdiction  of  court  of  last  resort  in  mandamus.    Note,  58 
L.  R.  A.  8S3,  836,  847,  867. 

'Right  to  certiorari  where  there  is  an  appeal.    Note,  50  L.  R.  A.  789. 

To  entitle  an  applicant  to  the  writ  of  mandamus,  he  must  have  (1)  a  dear 
legal  xi^t  to  liave  the  thing  done  which  he  thus  seeks  to  compel,  and  (2)  no 
other  adequate  legal  remedy.  Mandamus  may  issue  even  against  high  ezecn- 
tivo  officers  to  compel  the  performance  of  ministerial  duties,  imposed  by  law, 
and  Involving  the  sKerdse  of  no  discretion;  for  it  is  not  by  the  office  of  the 
person  to  whom  the  writ  is  directed,  but  the  natdre  of  the  thing  to  be  done,  that 
the  pgopriety  or  impropriety  of  landng  a  mandamus  is  to  be  determined.  And 
upon  the  same  princij^  it  may  issne  against  an  inferior  court  in  ministerial 


Before  proceeding  to  a  discussion  of  the  point  more  particularly  in- 
volved, viz.,  the  right  to  mandamus  an  executive  office,  it  is  in  order  to 
note  briefly  some  of  the  citations  which  serve  to  outline  the  general  nature 
of  the  writ  of  mandamus.  It  has  been  defined  as  "a  command  issuing 
from  a  common-law  court  of  competent  jurisdiction,  in  the  name  of  the 
State  or  sovereign,  directed  to  some  corporation  officer  or  inferior  court, 
requiring  the  performance  of  a  particular  duty  therein  specified,  which 
duty  results  from  the  official  station  of  the  party  to  whom  the  writ  is 
directed,  or  from  operation  of  law."  High  on  Extraordinary  Legal  Reme- 
dies, §  1.  The  definitions  of  Lord  Mansfield  and  of  Blackstone,  quoted  in 
the  principal  case,  are  also  to  be  found  in  the  citations,  the  former  credited 
by  one  court  to  Marbury  v.  Madison.    Harris  v.  State,  2  Ga.  292. 

The  late  citations  have  applied  the  syllabus  proposition  in  a  variety  of 
ways,  as  may  be  seen  from  the  citations:  Louisiana  v.  McAdoo,  234  U.  S. 
834,  58  L.  Ed.  1509,  34  Sup.  Ct.  938,  suit  by  State  of  Louisiana  against  Sec- 
retary of  Treasury  to  compel  revision  of  sugar  tariff  rates  not  allowed, 
since  this  act  involved  discretion;  Garfield  v.  United  States,  211  U.  S. 
261,  63  L.  Ed.  174,  29  Sup.  Ct.  62,  mandamus  will  lie  against  Secretary  of 
Interior,  ^oing  beyond  authority  in  erasing  name  of  Indian  from  citizen- 
ship-rolls; In  re  Garrosi,  229  Fed.  365,  mandamus  will  not  lie  to  compel 
District  Court  of  Porto  Rica  to  send  suit  to  appellate  court  before  judg- 
ment to  save  cost  and  delay ;  Branaman  v.  Harris,  189  Fed.  463,  injunction, 
restraining  postmaster  from  executing  "fraud  order,"  refused,  as  court  is 
unwilling  to  interfere  with  executive  officer  in  exercise  of  discretion; 
Wadsworth  v.  Boysen,  148  Fed.  780,  denying  jurisdiction  of  suit  to  enjoin 
Indian  agent  from  obstructing  complainant  firom  prospecting  on  rcsrrva- 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  120 

tion  lands;  Barber  Asphalt  Pay.  Co.  v.  Morris,  132  Fed.  955,  67  L.  B.  A. 
761,  66  C.  C.  A.  55,  upholding  power  of  Circuit  Court  of  Appeals  to  issue 
mandamus  where  lower  Federal  court  stayed  all  proceedings  until  deter- 
mination of- matter  by  State  court;  Kimberlin  v.  Comm.  to  Five  Civilized 
Tribes,  104  Fed.  655,  656,  658,  denying  mandamus  to  commission  of  five 
civilized  tribes;  State  ex  rel.  Higdon  v.  Jelks,  138  Ala.  121,  35  South.  61, 
denying  mandamus  to  compel  Governor  to  reinstate  national  guard  officer; 
Insane  Asylum  v.  Wolfly,  3  Ariz.  133,  22  Pac.  383,  holding  mandamus  does 
not  lie  to  territorial  Governor  to  compel  him  to  sign  warrant  on  treasurer 
for  funds  for  territorial  asylum,  at  instance  of  directors  of  asylum ;  People 
V.  Ward,  10  Cal.  App.  537, 102  Pac.  678,  mandamus  lies  to  compel  secretary 
of  foreign  corporation  resident  of  State  to  deliver  books  of  cqrporation, 
where  there  is  no  other  adequate  remedy;  Stewart  v.  Torrance,  9  Cal.  App. 
211,  98  Pac.  397,  mandamus  to  compel  settlement  of  bill  of  exceptions  in 
divorce  case  refused  by  Court  of  Appeal,  as  it  would  be  invasion  of  juris- 
diction of  Supreme  Court;  People  v.  District  Court,  29  Colo.  236,  68  Pac. 
254,  holding  that  in  suit  to  enjoin  assesso]>it  is  immaterial  whether  com- 
plainants will  be  compelled  to  institute  multiplicity  of  suits;  State  Board 
L.  Commrs.  v.  Carpenter,  16  Colo.  App.  438,  66  Pac.  166,  holding  action 
lies  against  board  of  land  commissioners  to  reinstate  lease  wrongfully  can- 
celed; Ray  V.  Garrison,  42  App.  D.  C.  38,  under  statute  imposing  no  duty 
to  certify  name  of  army  officer  entitled  to  promotion.  Secretary  of  State 
cannot  be  enjoined  from  nominating  other  army  officer;  Holzendorf  v.  Hay, 
20  App.  D.  C.  581,  judiciary  cannot  by  mandamus  compel  Secretary  of 
State  to  ui]ge  claims  of  citizen  of  this  country  against  foreign  country; 
West  V.  Hitchcock,  19  App.  D.  C.  342,  mandamus  lies  to  compel  Secretary 
of  Interior  to  make  allotment  of  land  to  adopted  members  of  Indian  tribe, 
where  all  requirements  of  law  complied  with  and  allotment  is  mere  min- 
isterial act;  Brown  v.  Root,  18  App.  D.  C.  242,  mandamus  will  not  lie  to 
compel  Secretary  of  War  to  muster  out  and  discharge  army  officer  claim- 
ing dismissal  by  court-martial  was 'unlawful ;  United  States  v.  Windom, 
8  Mack.  (D.  C.)  60,  mandamus  lies  to  compel  Secretary  of  Treasury  to 
perform  ministerial  act  of  delivering  draft  to  which  creditor  has  legal 
right ;  Donaldson  v.  Wright,  7  App.  D.  C.  59,  refusing  injunction  to  restrain 
superintendent  of  census  from  publishing  altered  bulletins  on  condition  of 
Indians;  United  States  v.  Bayard,  5  Mack.  (D.  C.)  429,  434,  payment  of 
money  by  Secretary  of  State  is  ministerial  duty,  where  claimant  has  clear 
legal  right,  and  mandamus  will  lie;  United  States  v.  Boutwell,  3  McAr. 
(D.  C.)  177,  mandamus  will  not  lie  to  compel  payment  of  money  by  Secre- 
tary of  Treasury  when  act  involves  discretion ;  Seymour  v.  South  Carolina, 

2  App.  D.  C.  256,  mandamus  will  not  lie  to  compel  commissioner  of  patents 
to  issue  trademark,  his  duties  in  such  case  involving  judgment  and  discre- 
tion; Ingard  v.  Barker,  27  Idaho,  137,  147  Pac.  297,  mandamus  to  compel 
delivery  of  commission  by  Secretary  of  State  refused  until  reasonable  time 
given  for  horticultural  association  to  make  recommendation,  as  provided 
by  law,  though  Governor  not  compelled  to  appoint  from  those  recom- 
mended; Farrelly  v.  Cole,  60  Kan.  378,  56  Pac.  499,  holding  Governor's 
action  in  calling  extra  session  of  legislature  is  not  reviewable;  Board  of 


121  liARBUBY  V.  MADISON.  1  Cr.  137-180 

Trustees  ▼.  McCroiy,  132  Ky.  92,  21  L.  R.  A.  (N.  S.)  583,  116  S.  W.  327, 
eonrt,  having  no  appellate  power  over  trustees  of  firemen's  pension  fund, 
cannot  on  mandamus  review  act  involving  discretion;  Traynor  v.  Beckham, 
116  Ky.  24,  74  S.  W.  1107,  mandamus  lies  to  Grovemor  to  •ompel  issuance 
of  commission  to  police  judge  legally  appointed  hy  city  council;  In  re 
Lanritsen,  99  Minn.  325, 109  N.  W.  409,  mandamus  will  not  lie  to  determine 
charges  of  fraud  and  illegality  in  voting  in  election  contests;  State  v. 
Smith,  23  Mont.  48,  57  Pac.  450,  refusing  mandamus  to  compel  board  of 
examiners  to  approve  contracts;  State  v.  Savage,  64  Neb.  696,  90  N.  W. 
899,  holding  mandamus  may  lie  to  compel  Governor  to  appoint  Rre  and 
police  commissioners  for  city  of  Omaha;  State  v.  Dickerson,  33  Nev.  566, 
113  Pac.  113,  granting  mandamus  directing  Governor  to  perform  minis- 
terial act  of  accepting  bonds  as  required  by  statute;  State  R.  M.  F.  Co. 
V.  Toole,  26  N.  H.  28,  91  Am.  St.  Rep.  888,  66  Pac.  498,  mandamus  lies  to 
compel  State  board  to  sign  contract  after  formally  accepting  bid  for  sup- 
plies ;  Durker  v.  Venable,  126  N.  C.  449,  35  S.  E.  819,  holding  mandamus 
to  compel  superintendent  to  sign  teacher's  demand  may  be  returnable  at 
chambers ;  White  v.  Auditor,  126  N.  C.  680,  581,  596,  36  S.  E.  134, 135, 140, 
holding  mandamus  lies  to  compel  auditor  to  issue  warrant  for  oyster  in- 
spector's salary ;  State  v.  Huston,  27  Okl.  626,  629,  84  L.  R.  A.  (N.  &)  380, 
113  Pac.  198, 199,  executive  officers  of  State,  other  than  Governor,  enjoined 
from  removing  offices,  public  records,  books  and  papers  from  seat  of 
government;  Norris  v.  Cross,  25  Okl.  310,  311,  105  Pac.  1009,  Secretary  of 
State  may  be  compelled  by  mandamus  to  grant  hearing  as  to  sufficiency  of 
referendum  petitions  filed,  but  cannot  be  compelled  to  decide  in  any  par- 
ticular way;  City  of  El  Reno  y.  Cleveland-Trinidad  Paving  Co.,  25  Okl.  661, 
27  L.  R.  A.  (N.  S.)  650,  107  Pac.  167,  executive  officers  of  city  enjoined 
from  repealing  assessing  ordinance,  such  repeal  not  within  exercise  of  legis- 
lative discretion,  but  beyond  its  powers  as  invading  property  rights  of 
contractor;  State  v.  Huston,  21  Okl.  802,  97  Pac.  990,  prohibition  lies  where 
court  assumes  jurisdiction  over  suit  prosecuted  by  attorney  general  with- 
out executive  request;  McDaid  v.  Territory,  1  Okl.  98,  30  Pac.  440,  grant- 
ing mandamus  to  compel  townsite  trustees  to  execute  deed  to  contestant 
they  have  decided  is  entitled  to  deed;  Clement  v.  Graham,  78  Vt.  319,  63 
Atl.  155,  granting  mandamus  on  petition  of  taxpayer  to  compel  State 
auditor  to  permit  inspection  of  vouchers  in  his  office;  Hatfield  v.  Graham, 
73  W.  Va,  769,  L.  R.  A.  1915A,  175,  81  S.  E.  537,  executive  not  amenable 
to  judiciary  for  exercise  of  power  within  his  discretion  to  suppress  news- 
paper aiding  rioters  in  district  under  martial  law ;  Ekern  v.  McGovern,  154 
Wis.  220,  46  L.  R.  A.  (N.  S.)  796,  142  N.  W.  612,  Governor  may  remove 
commissioner  of  insurance,  but  not  within  his  discretion  to  forcibly  install 
successor  in  office;  State  v.  Brooks,  14  Wyo.  412,  84  Pac.  490,  upholding 
jurisdiction  to  issue  mandamus  to  compel  Governor  to  issue  certificate  of 
election  as  State  treasurer;  dissenting  opinion  in  People  v.  Rose,  207  111. 
375,  69  N.  E.  770,  majority  denying  mandamus  to  compel  Secretary  of 
State  to  cancel  forfeiture  of  corporate  charter  for  failure  to  comply  with 
Laws  1901 ;  dissenting  opinion  in  Ellingham  v.  Dye,  178  Ind.  420,  Ann.  Cas. 
19150,  200,  99  N.  E.  31,  majority  holding  that  duties  imposed  on  Governor 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  122 

to  submit  Constitation  to  electors  were  ministerial,  and  performance  conld 
be  restrained  by  injunction;  dissenting  opinion  in  People  v.  Dunne,  258 
111.  461,  45  L.  R.  A.  (N.  S.)  500,  101  N.  E.  567,  majority  holding  that  man- 
damus will  not  lie  to  compel  Governor  of  State  to  canvass  abstract  of 
votes  and  issue  certificate  of  election  to  petitioner;  dissenting  opinion  in 
Henry  v.  State,  88  Miss.  844,  39  South.  890,  majority  holding  that  Governor 
cannot  sue  to  have  contract  for  convict  labor  canceled;  dissenting  opinion 
in  H.  P.  Cornell  Co.  v.  Barber,  31  R.  I.  393,  76  Atl.  814,  majority  holding 
that  mandamus  will  lie  to  compel  town  treasurer  to  pay  claims  properly 
audited. 

The  principal  case  lays  down  the  principle,  that  in  order  to  entitle  an 
applicant  to  the  writ  two  things  must  concur:  First,  a  clear  legal  right 
to  have  the  thing  done,  to  cbmpel  the  doing  of  which  the  writ  is  sought; 
and  second,  that  there  is  no  other  adequate  legal  remedy  by  which  the 
specific  performance  of  the  duty  can  be  enforced.  Ex  parte  Mackey,  15 
S.  C.  336;  see,  also.  Wood  on  Mandamus,  §§68,  84,  89,  110;  Brown  v. 
Bragunier,  79  Md.  236,  29  Atl.  8;  State  v.  Larrabee,  3  Pinn.  168;  Baker 
v.  Johnson,  41  Me.  20 ;  State  v.  Holliday,  8  N.  J.  L.  206,  208.  If,  there- 
fore, the  statute  conferring  the  right  be  unconstitutional,  this  may  be 
argued  in  defense  and  will  defeat  the  application.  Hoover  v.  McChesney, 
81  Fed.  483 ;  Van  Horn  v.  State,  46  Neb.  82,  64  N.  W.  372 ;  State  v.  Auditor, 
47  La.  Ann.  1694,  18  South.  751.  In  accordance  with  this  rule,  also,  an 
appellate  court  has  declined  to  command  a  subordinate  tribunal  to  strike 
out  a  certain  portion  of  a  decree  which  did  not  alter  its  l^al  effect  and  so 
interfered  with  no  specific  right  of  the  applicant  (State  ex  rel.  v.  Larrabee, 
3  Pinn.  166,  168) ;  or  to  mandamus  a  road  commission  to  grant  petitioner 
a  ferry  license;  since  it  did  not  appear  that  he  owned  the  land  on  both 
sides  of  the  stream  as  required  by  statute.  State  v.  Com.  of  Roads,  3 
Port.  416.  And  this  doctrine  means  not  only  that  he  must  show  a  clear 
duty  on  the  part  of  the  defendant  to  perform  the  act  sought  to  be  com- 
pelled, but  also,  in  general,  some  personal  or  special  interest  of  his  own 
in  the  subject  matter,  -as  a  foundation  of  his  right  to  the  relief.  High  on 
Extraordinary  Legal  Remedies,  §  431.  To  this  rule,  however,  there  is  an 
exception  where  the  duty  sought  to  be  enforced  is  a  public  one,  and  the 
petitioner  need  not  show  the  same  degree  of  interest  in  the  performance 
of  this  duty  as  is  required  where  the  relief  is  sought  merely  for  the  pro- 
tection of  private  rights.  In  general  it  is  sufficient  in  such  a  case  for  the 
petitioner  to  show  that  he  is  a  citizen  and  as  such  interested  in  the  execu- 
tion of  the  laws.  Wise  v.  Bigger,  79  Va.  273;  State  Vv  Ware,  13  Or.  384, 
10  Pac.  887.  A  fortiori  it  is  competent  for  anyone  specially  interested  in 
the  performance  of  a  public  duty  to  apply  for  mandate  to  compel  its  ob- 
servance— as,  for  instance,  for  a  telephone  company  to  mandamus  an  elec- 
tric railway  to  maintain  guard  wires  above  its  trolleys  as  required  by  city 
ordinance.  State  ex  rel.  v.  Janesville  Str.  R.  R.,  87  Wis.  79,  41  Am.  St. 
Rep.  28,  57  N.  W.  972. 

The  second  half  of  the  proposition,  viz.,  that  there  must  be  no  other 
adequate  remedy  existent,  is  also  illustrated  by  the  citations,  and  is  un- 
questioned law.    Upon  this  and  other  grounds  mandamus  to  a  State  auditor 


123  I  MARBURY  v.  MADISON.  1  Cr.  137-180 

to  compel  pajonent  of  a  claim  was  refused,  there  being  a  plain,  speedy  and 
adequate  remedy,  so  the  court  declared,  in  an  application  to  the. legislative 
assembly.  State  ex  rel.  v.  Kenney,  9  Mont.  380,  24  Pac.  97.  To  the  same 
effect  is  Reeside  v.  Walker,  11  How.  292,  IS  L.  Ed.  701.  So,,  also,  man- 
damus to  a  State  (Governor  to  issue  a  commission  to  office  has  been  re- 
fused upon  the  ground,  among  others,  that  the  claimant  has  a  remedy 
by  legal  contest  under  a  State  statute.  Brown  v.  Bragunier,  79  Md.  236, 
29  Atl.  8.  If  it  appears  that  resort  to  the  ordinary  form  of  relief  would 
cause  delay,  and  consequent  injury  to  the  complainants'  rights,  this  will 
sometimes  justify  the  exercise  of  this  form  of  extraordinary  relief.  Hatch 
y.  City  Bank,  1  Rob.  (La.)  495.  In  general,  mandamus  is  not  the  proper 
method  of  trying  title  to  an  office  against  one  actually  in  possession  under 
color  of  law,  but  rather  quo  warranto  proceedings  which  serve  at  once 
to  remove  the  incumbent  in  a  proper  case,  and  install  the  proper  officer. 
French  v.  Cowan,  79  Me.  426,  10  Atl.  340 ;  Brown  v.  Turner,  70  N.  C.  93, 
106 ;  Supervisors  v.  O'Malley,  46  Wis.  69,  50  N.  W.  525.  But  one  legally 
elected  to  an  office  may  mandamus  the  incumbent,  so  it  has  been  held, 
to  deliver  over  the  office  and  books  to  him,  on  the  ground  that  quo  warranto 
would  merely  procure  defendant's  removal  and  would  not  be  adequate. 
Harwood  v.  Marshall,  9  Md.  83,  98;  and  see  Conklin  v.  Cunningham,  7 
N.  M.  466.  And  elsewhere  it  has  been  allowed  against  one  who  had  no 
color  o{  title  to  the  office  in  favor  of  one  with  prima  fsifiie  title.  State  v. 
Archibald,  5  N.  D.  362;  and  see  Manor  v.  State  ex  rel.,  149  Ind.  318,  49 
N.  E.  163.  So,  also,  injunction  may  be  a  proper  remedy  to  prevent  one 
holdiiig  an  office  from  being  forcibly  removed.  Butler  v.  White,  83  Fed. 
582,  588. 

Moreover,  courts  will  not  grant  the  writ  unless  it  appears  that  it  would 
aeeomplish  the  desired  purpose.  Accordingly  an  application  for  mandamus 
to  a  board  of  election  canvassers  to  compel  them  to  count  certain  ballots 
was  refused  by  the  Supreme  Court  of  South  Carolina,  as  it  appeared  that 
the  board  would  go  out  of  existence  before  the  mandate  could  be  granted. 
Ex  parte  Mackey,  15  S.  C.  336;  and  see  Brown  v.  Bragunier,  79  Md.  236, 
29  Atl.  8.  , 

In  the  code  States  the  cases  in  which  mandamus  is  admissible  are  gen- 
erally provided  by  statute,  the  scope  of  the  enactments  being  sometimes 
more  sometimes  less  extensive  than  at  common  law.  Thus  mandamus  is 
admissible  in  Louisiana,  not  only  where  there  is  no  adequate  remedy,  but 
also  where  the  legal  remedy  is  likely  to  produce  great  delay  or  defeat  the 
ends  of  justice.    Hatch  v.  City  Bank,  1  Rob.  (La.)  497. 

The  first  case  calling  definitely  for  a  decision  upon  this  question  of  the 
right  to  mandamus  an  executive  officer  arose  in  1837.  As  has  been  se^n 
above,  the  courts  early  decided  that  the  Circuit  Court  for  the  District  of 
Columbia  was  empowered  to  issue  the  writ  in  original  causes.  And  this 
case  came  before  the  Supreme  Court  upon  appeal  from  a  judgment  of  that 
tribunal  awarding  mandamus  against  the  postmaster-general.  One  Stokes 
and  others,  having  certain  contract  claims  against  the  postoffice  depart- 
ment, payment  of  which  was  refused,  applied  to  Congress  for  relief,  and 
succeeded  in  procuring  the  passage  of  an  act  of  Congress,  providing,  among 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  124 

other  things,  "that  the  solicitor  of  the  treasury  do  examine  into  and  adjust 
the  said  claims  therein  specified,  and  that  the  postmaster-general  credit 
said  contractors  with  whatever  sum  or  sums  of  money;,  if  any,  the  said 
solicitor  shall  so  decide  to  be  due  to  them  on  account  of  such  service  or 
contract."  In  accordance  with  this  act  the  solicitor  of  the  treasury  did 
make  an  award  which,  however,  the  postmaster-general  refused  to  credit 
in  full  to  the  relators,  as  directed  by  the  act,  and  as  recommended  by  a 
subsequent  senate  resolution.  In  an  elaborate  opinion  the  decision  below 
was  affirmed  and  the  mandamus  allowed.  "There  are  certain  political 
duties  imposed  upon  many  officers  in  the  executive  department,"  observed 
the.  court,  per  Thompson,  J.,  "the  discharge  of  which  is  under  the  direc- 
tion of  the  President.  But  it  would  be  an  alarming  doctrine  that  Congress 
cannot  impose  upon  any  executive  officer  any  duty  they  may  think  proper, 
which  is  not  repugnant  to  any  rights  secured  and  protected  by  the  Con- 
stitution; and  in  such  cases  the  duty  and  responsibility  grow  out  of  and 
are  subject  to  the  control  of  the  law,  and  not  to  the  direction  of  the  Presi- 
dent, and  this  is  emphatically  the  case  where  the  duty  enjoined  is  of  a 
mere  Vinisterial  character."  Kendall  v.  United  States,  12  Pet.  610,  9 
L.  Ed.  1215.  And  again,  "the  act  required  by  the  law  to  be  \done  by  the 
postmaster-general  is  simply  to  credit  the  relators  with  the  full  amount 
of  the  award  of  the  solicitor.  This  is  a  precise  definite  act,  purely  minis- 
terial, and  about  which  the  postmaster-general  had  no  discretion  \f hatever. 
.  .  .  There  is  no  room  for  the  exercise  of  any  discretion,  official  or  other- 
wise; all  that  is  shut  out  by  the  direct  and  positive  command  of  the  law, 
and  the  act  required  to  be  done  is  in  every  just  sense  a  mere  ministerial 
act."  This  reasoning  was  affirmed  in  Decatur  v.  Paulding,  14  Pet.  497,  10 
L.  Ed.  559,  which  was  an  application  for  mandamus  against  the  Secre- 
tary of  the  Navy  to  compel  him  to  pay  certain  pension  claims.  The  man- 
damus, was  there  refused,  however,  as  the  act  sought  to  be  compelled  was 
held  to  involve  the  exercise  of  discretion,  and  the  judiciary  had  no  power 
to  control  an  executive  officer  in  an  executive  duty. 

Since  the  decision  of  these  cases  there  have  been  a  variety  of  causes 
before  the  national  courts  involving  the  question  of  the  power  of  the  court 
to  control  and  direct  certain  acts  of  the  executive  department;  and  all 
recognize  and  emphasize  the  doctrine  announced  by  the  foregoing  cases. 
"It  is  elementary  law,"  observed  the  Supreme  Court,  per  Mr.  Justice  White, 
"that  mandamus  will  only  lie  to  enforce  a  ministerial  duty,  as  contradis- 
tinguished from  a  duty  that  is  merely  discretionary.  This  doctrine  was 
clearly  and  fully  set  forth  by  Chief  Justice  Marshall  in  Marbury  v.  Madi- 
son, 1  Cr.  137,  and  has  since  been  many  times  reasserted  by  this  court." 
United  States  ex  rel.  v.  Lamont,  155  U.  S.  308,  89  L.  Ed.  168,  15  Sup.  Ct. 
98.  The  general  principle  is  more  fully  stated  by  Mr.  Justice  Bradley  in 
another  case:  "The  court  will  not  interfere  by  mandamus  with  the  exec- 
utive officers  of  the  government  in  the  exercise  of  their  ordinary  official 
duties,  even  where  those  duties  require  an  interpretation  of  the  law,  the 
court  having  no  appellate  power  for  that  purpose;  but  where  they  refuse 
to  act  in  a  case  at  all,  or  where  by  special  statute,  or  otherwise,  a  mere 
ministerial  duty  is  imposed  upon  them,  that  is,  a  service  which  they  are 


125  MARBURY  v.  MADISON.  1  Cr.  137-180 

bound  to  perform  without  farther  question,  then,  if  they  refuse,  a  man- 
damus may  be  issued  to  compel  them."  United  States  ex  rel.  v.  Black,  128 
U.  S.  48,  82  L.  Ed.  857,  9  Sup.  Ct.  14.  And  the  statement  of  the  prin- 
ciple in  other  cases  differs  in  the  wording  only,  and  its  authority  is  well 
established.  See,  in  particular,  Noble  v.  Union  etc.  R.  R.,  147  U.  S.  171, 
37  L.  Ed.  125,  13  Sup.  Ct.  272;  Mississippi  v.  Johnso|i,  4  Wall.  498,  18 
L.  Ed.  441 ;  Gaines  v.  Thompson,  7  Wall.  349,  19  L.  Ed.  64 ;  United  States 
V.  Schurz,  102  U.  S.  395,  26  L.  Ed.  171;  Redfield  v.  Windom,  137  U.  S.  643, 
84  L.  Ed.  814,  11  Sup.  Ct.  199 ;  N.  0.  Nat.  Bank  v.  Merchant,  18  Fed.  850 ; 
Taylor  v.  Kercheval,  82  Fed.  499;  Hoover  v.  McChesney,  81  Fed.  482; 
Cunningham  v.  Macon  etc.  R.  R.,  109  U.  S.  453,  27  L.  Ed.  994,  3  Sup.  Ct. 
297 ;  Houston  etc.  R.  R.  v.  Comr.,  36  Tex.  411 ;  Brown  v.  Turner,  70  N.  C. 
105,  106;  Treat  v.  ^iddletown,  8  Conn.  247;  Ex  parte  Echols,  39  Ala.  700, 
88  Am.  Dec.  751;  Ex  parte  Hill,  38  Ala.  485;  Dudley  v.  James,  83  Fed. 
345,  347;  Ex  parte  Reeside,  20  Fed.  Cas.  458;  McElrath  ▼.  Mcintosh,  16 
Fed.  Cas.  79. 

The  verdict  of  the  State  courts. seems  to  be  equally  unanimous  as  to 
executive  officers,  other  than  the  State  Governors  themselves,  McCauley 
V.  Brooks,  16  Cal.  41 ;  Pacheco  v.  Beck,  52  Cal.  10 ;  Bledsoe  v.  Int.  R.  R., 
40'Tex.  537,  556;  Bonner  v.  State,  7  Ga.  482;  Swann  v.  Buck,  40  Miss. 
268,  290;  Chumasero  v.  Potts,  2  Mont.  242,  256;  State  v.  Lord,  28  Or.  525, 
43  Pac.  478;  Howell  v.  Cooper,  2  Colo.  App.  531,  31  Pac.  523;  State  v. 
Auditor,  47  Iia.  Ann.  1686,  18  South.  748. 

•The  rule  then  is  that  mandamus  will  only  lie  when  the  act  sought  to  be 
compelled  is  a  mere  ministerial  duty.  The  party  must,  of  course,  show 
the  lack  of  other  adequate  remedy  and  establish  in  himself  a  clear  ri^ht  to 
the  thing  sought.  So,  also,  the  obligation  to  perform  the  duty  sought  to 
"be  enforced  must  be  both  peremptory  and  plainly  defined.  The  law  must 
not  only  authorize  but  require  the  act  to  be  done.  United  States  v. 
Lamont,  155  U.  S.  308,  39  L.  Ed.  163,  15  Sup.  Ct.  98;  Reeside  v.  Walker, 
11  How.  292,  18  L.  Ed.  701.  And  the  duty  must  exist  at  the  time  the 
application  for  the  mandamus  is  made.  United  States  v.  Lamont,  155  U.  S. 
308,  39  L.  Ed.  168,  15  Sup.  Ct.  98. 

It  is  not  always  easy  to  decide  when  an  official  duty  is  merely  ministe- 
rial,  imposed  by  law,  and  involving  the  exercise  of  no  discretion,  and  when 
it  is  one  which  the  courts  have  no  right  to  enforce  or  control.  As  was 
said  by  Mr.  Justice  Catron,  dissenting  in  Decatur  v.  Paulding,  14  Pet.  518, 
10  L.  Ed.  669:  "Any  sensible  distinction  applicable  to  all  cases  it  is  im- 
possible to  law  down;  such  are  the  refinements  and  mere  verbal  distinc- 
tions as  to  leave  an  almost  unlimited"  discretion  to  the  court."  "A  minis- 
terial act,"  in  the  words  of  the  Supreme  Court  of  Kansas,  "is  one  which  a 
public*  officer  or  agent  is  reqilired  to  perform  upon  a  given  state  of  facts, 
in  a  prescribed  manner,  in  obedience  to  the  mandate  of  legal  authority,  and 
-without  regard  to  his  own  opinion  concerning  the  propriety  or  impro- 
priety of  the  act  to  be  performed."  Martin  v.  Ingham,  38  Kan.  651,  17 
Pac.  168.  Most  of  the  duties  of  an  executive  officer  are  not  mere  minis- 
terial duties.  **The  head  of  an  executive  department  of  the  government,  in 
the  administration  of  the  various  and  important  concerns  of  his  office^  ia 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  126 

continually  required  to  exercise  judgment  and  discretion.  He  must  exer- 
cise his  judgment  in  expounding  the  laws  and  resolutions  of  Congress, 
under  which  he  is  from  time  to  time  required  to  act.  If  he  doubts,  he  has 
a  right  to  call  on  the  attorney  general  to  assist  him  with  his  counsel." 
Decatur  v.  Paulding,  14  Pet.  615, 10  L.  Ed.  568. 

It 'may  safely  be  affirmed  that  the  courts  will  control  the  acts  of  executive 
officers  only  in  a  clear  case;  and  that  the  deference  due  to  a  co-ordinate 
department  of  the  government  will  lead  them  to  indulge  every  reasonable 
doubt  in  favor  of  the  freedom  of  executive  action.  One  case  ffoes  to  the 
extent  of  asserting  that  not  all  ministerial  acts  may  be  controlled  by  man- 
damus. R«dfield  v.  Windom,  137  U.  S.  643,  84  L.  Ed.  814,  11  Sup.  Ct.  199. 
And  while  the  proposition  seems  scarcely  tenable,  it  indicates  the  reluc- 
tance often  manifested  by  the  courts  in  granting  mandamus  against  an 
executive  officer. 

There  are  among  the  citations  numerous  other  attempts  at  a  definition 
of  ministerial  duties.  The  distinction  between  ministerial  and  other  acts 
has  been  pointed  out  as  follows :  "When  the  law  prescribes  and  defines  the 
duty  to  be  performed  with  such  precision  and  certainty  as  to  leave  noth- 
ing to  the  exercise  of  discretion  or  judgment,  the  act  is  ministerial;  but 
where  the  act  to  be  done  involves  the  exercise  of  discretion  or  judgment 
in  determining  whether  the  duty  exists,  it  is  not  to  be  deemed  merely  minis- 
trial."  Comr.  V.  Smith,  5  Tex.  47j9.  It  is  but  going  over  the  same  ground 
to  say  of  the  duty  for  whose  performance  the  mandamus  is  asked  that  it 
must  be  "a  simple  definite  duty  arising  under  conditions  admitted  or 
proved  to  exist  and  imposed  by  law"  (Mississippi  v.  Johnson,  4  Wall.  498, 
18  L.  Ed.  441);  or  that  it  must  be  "clear  and  indisputable"  (Knox  Co. 
Commrs.  v.  Aspinwall,  24  How.  376,  16  L.  Ed.  735);  or  that  it  must  be 
"peremptory  and  plainly  defined"  (United  States  ex  rel.  v.  Lamont,  165 
U.  S.  308,  39  is.  Ed.  168, 16  Sup.  Ct.  98) ;  and  see  State  v.  Lord,  28  Or.  525, 
43  Pac.  478;  Enterprise  etc.  v.  Zumstein,  67  Fed.  1007,  37  U.  S.  App.  71; 
State  ex  rel.  v.  Meier,  143  Mo.  446,  43  S.  W.  307. 

Mandamus  has  been  likened  to  injunction  with  respect  to  the  propriety 
of  its  issuance  against  an  executive  officer.  "In  the  one  case,"  said  Mr. 
Justice  Miller,  in  Gaines  v.  Thompson,  7  Wall.  362,  353,  19  L.  Ed.  65,  "the 
officer  is  required  to  abandon  his  right  to  exercise  his  personal  judgment, 
and  to  substitute  that  of  the  court,  by  performing  the  act  as  it  commands. 
In  the  other  he  is  forbidden  to  do  the  act  which  his  judgment  and  discre- 
tion tell  him  should  be  done.  There  can  be  no  difference  in  the  principle 
which  forbids  interference  with  the  duties  of  these  officers,  whether  it  be 
by  writ  of  mandamus  or  injunction."  See,  also.  Noble  v.  Union  etc.  Co., 
147  U.  S.  171,  87  L.  Ed.  125,  13  Slip.  Ct.  272 ;  Enterprise  Savings  Assn.  v. 
Zumstein,  67  Fed.  1007,  37  U.  S.  App.  71 ;  Lane  v.  Anderson,  67  Fed.  565 ; 
Dudley  v.  James,  83  Fed.  349. 

The  matter  can  be  elucidated  further  only  by  illustrations  taken  from 
the  decided  cases.  Aside  from  Kendall  v.  United  States,  12  Pet.  610, 
9  L.  Ed.  1215,  and  Decatur  v.  Paulding,  14  Pet.  497,  10  L.  Ed.  559,  which 
are  often  referred  to  as  well  illustrating  the  line  of  demarcation,  there 
are  many  cases  among  the  citations  in  which  the  courts  have  been  com- 


127  .  MARBURY  v.  MADISON.  1  Cr.  137-180 

pelled  to  decide  whether  a  given  duty  was  or  was  not  merely  ministerial. 
The  ease  of  United  States  v.  Black,  128  U.  S.  40,  82  L.  Ed.  854,  9  Sup. 
Ct.  12,  offers  a  further  admirable  illustration  of  the  difference  between 
executive  and  ministerial  duties.  It  was  there  held  that  the  commissioner 
of  pensions,  by  receiving  the  application  of  a  pensioner  fo^  an  increase 
in  his  pension,  as  provided  by  act  of  June  16,  1880,  by  considering  it 
and  the  evidence  in  support  of  it,  and  by  deciding  adversely  to  the  peti- 
tioner, performed  an  executive  act  which  the  courts  have  no  right  to 
control,  either  by  mandamus  or  on  appeal.  If,  however,  this  decision 
of  the  commissioner  of  pensions  had  been  afterward  overruled  by  the 
Secretary  of  the  Interior,  and  the  commissioner  had  then  refused  to  carry 
out  the  command  of  his  superior,  then  the  court  declared  that  mandamus 
might  properly  have  issued  to  compel  compliance  with  such  command. 

The  principal  case  declares  the  delivery  of  a  judicial  commission,  duly 
signed  and  sealed,  to  be  a  mere  ministerial  duty  imposed  by  law  upon  the 
Secretary  of  State.  Such  also  is  the  duty  of  the  Secretary  of  the  Interior 
in  delivering  over  the  patent  to  lands,  although  he  has  first  to  determine 
by  scrutiny  of  the  seal,  signatures,  etc.,  that  the  document  is  valid  and 
genuine.  United  States  v.  Schurz,  102  U.  S.  396,  399,  402,  26  L.  Ed.  171, 
172,  174.  The  Supreme  Court  of  California  has  decided  that  the  Gov- 
ernor might  be  mandamused  to  perform  the  ministerial  duty  of  signing  a 
similar  patent  to  certain  lands.  Middletown  v.  Low,  30  Cal.  601.  And  in 
a  Colorado  case  the  writ  issued  against  the  same  ofBcer  for  the  delivery 
of  a  patent  for  public  lands..  Greenwood  v.  Routt,  17  Colo.  169,  81  Am. 
St.  Bep.  294,  28  Pac.  1129.  If  an  executive  officer  issue  an  erroneous  deed, 
he  may  be  compelled  by  mandamus  to  correct  it.  McCready  v.  Sexton,  29 
Iowa,  381,  4  Ain.  Bep.  222.  The  duty  of  a  Secretary  of  State  in  placing 
the  great  seal  of  the  State  upon  a  commission  issued  by  the  Governor  is 
also  ministerial.  State  ex  rel.  v.  Crawford,  28  Fla.  476,  508,  511,  10  South. 
120y  128,  129.  And  it  has  been  held  that  the  duty  of  the  same  officer  in 
issuing  notices  for  an  election  is  merely  ministerial,  so  that  he  may  be  en- 
joined from  issuing  such  notices  under  a  void  apportionment  act.  State 
ex  rel.  v.  Cunningham,  81  Wis.  503,  51  N.  W.  736.  So,  also,  a  Secretary 
of  State  has  been  required  to  count  votes  for  congressman  transmitted  to 
him  from  the  various  counties,  and  issue  a  commission  to  the  candidate 
receiving  the  greatest  number.  Pacheco  v.  Beck,  52  Cal.  3,  10.  This  same 
duty  of  canvassing  a  vote  cast  has  been  compelled  when  reposed  in  the 
Governor,  marshal  and  Secretary  of  State,  the  court  holding  that  it  in- 
volved the  exercise  of  no  more  discretion  than  adding  a  column  of  figures. 
Chumasero  v.  Potts,  2  Mont.  256,  292. 

The  duty  of  a  State  auditor  or  controller  in  drawing  warrants  upon 
the  State  treasurer  is  often  ministerial.  So  that  he  may  be  compelled  to 
issue  such  a  warrant  for  the  payment  of  the  salary  of  another  executive 
officer,  as  a  Secretary  of  State  (Page  v.  Hardin,  8  B.  Mon.  652;  State  v. 
Hickman,  9  Mont,  377,  23  Pac.  742) ;  or  a  district  attorney  (Swann  v. 
Buck,  40  Miss.  268,  290);  or  a  controller  (Thomas  v.  Owens,  4  Md.  189) ; 
or  a  court  stenographer's  salary  (Pickle  v.  McCall,  86  Tex.  218,  24  S.  W. 
265)  ;  or  of  an  allowed  claim  (State  v.  Auditor,  47  La.  Ann.  1686,  18  South. 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  '  ,  128 

« 

748) ;  and  to  pay  a  State  printer  for  work  done,  there  being  no  dispute  as 
to  the  amount  of  the  claim  (Fish  v.  Cuthbert,  2  Mont.  593,  605).  But  the 
right  to  .compel  an  auditor  by,  mandamus  to  issue  a  warrant  upon  the  State 
treasurer  for  the  payment  of  a  reward  offered  has  been  questioned.  State 
ex  rel.  v.  Auditor,  61  Mo.  263,  268. 

The  duty  ^posed  upon  other  ofiicers,  such  as  a  State  board  of  education, 
directed  by  statute  to  draw  warrants  upon  the  State  treasurer  for  the 
payment  of  obligations  incurred  is  also  ministerial  in  some  instances,  and 
may  be  controlled  by  mandamus.  Granville  etc.  Board  v.  State  Board  of 
Education,  106  N.  C.  83,  10  S.  E.  1002.  So,  also,  the  Governor  of  a  State 
may  be  mandamused  in  the  performance  of  this  duty  in  those  jurisdictions 
where  mandamus  to  that  officer  is  allowed.  Gotten  v.  Ellis,  7  Jones  (N.  G.), 
550. 

Sometimes  also  the  act  of  the  v. register  of  a  government  land  office  in 
preparing  and  signing  the  patents  for  public  lands  may  be  enforced  by 
mandamus.  This  is  true  where  all  necessary  conditions  have  been  com- 
plied with  by  the  claimant.  State  ex  rel.  v.  Nicholls,  42  La.  Ann.  223,  7 
South.  744.  In  a  Texas  case  this  duty  was  compelled  where  the  grant  of 
land  was  to  a  railroad  company  upon  condition  that  a  certain  portion 
of  its  road  was  first  to  be  completed,  though  the  court  was  divided  in 
opinion  and  the  leading  case  was  called  in  question  by  the  dissentients. 
Kuechler  v.  Wright,  40  Tex.  632,  651,  652,  659,  685,  689 ;  and  see  Houston 
etc.  R.  R.  V.  Kuechler,  36  Tex.  382,  411.  But  it  has  been  held  by  Mr.  Justice 
Miller  at  circuit  that  the  duty  of  a  register  ai^d  receiver  of  the  land  depart- 
ment in  acting  upon  claims  to  pre-emption  o£  land  is  not  a  mere  ministerial 
duty.  **They  have  first  to  determine  whether  the  land  which  is  the  sub- 
ject of  the  claim  belongs  to  the  government,  and  is  not  already  taken  up 
under  some  superior  claim,  and  then  whether  the  party  claiming  has  made 
the  requisite  improvement,  and  has  shown  the  required  residence  on  the 
land.  All  these  questions  are  to  be  investigated  in  a  manner  which  re- 
quires the  exercise  of  judicial  judgment  and  discretion,  and  are  the  very 
reverse  of  ministerial."  Litchfield  v.  Register,  1  Woolw.  309,  Fed.  Gas. 
8388.  Accordingly  he  refused  to  issue  an  injunction  restraining  the  issu- 
ance of  patents  to  such  lands.  Litchfield  v.  Register,  9  Wall.  575,  19 
L.  Ed.  681.  In  another  case  the  national  Supreme  Gourt  held  that  the  act 
of  the  Secretary  of  the  Interior  in  ordering  the  cancellation  of  an  entry 
under  which  defendants  claimed  an  equitable  interest  iiv  certain  lands  was 
not  at  all  a  ministerial  act  subject  to  control  by  mandamus  or  injunction. 
''The  action  of  the  officers  of  the  law  department,"  said  the  court,  per 
Mr.  Justice  Miller,  referring  to  ministerial  acts,  "with  which  we  are  asked 
to  interfere  in  this  case,  is  clearly  not  of  this  character.  The  validity  of 
plaintiff's  entry,  which  is  involved  in  their  decision,  is  a  question  which 
requires  the  careful  consideration  and  construction  of  more  than  one  act  of 
Gongress.  It  has  been  for  a  long  time  before  the  department,  and  has 
received  the  attention  of  successive  secretaries  of  the  interior,  and  has 
been  found  so  difficult  as  to  justify  those  officers  in  requiring  the  opinion 
of  attorney  general.  It  is  far  from  being  a  ministerial  act  under  any 
definition  given  by  this  court."    Gaines  v.  Thompson,  7  Wall.  353,  19 


129  MARBURY  v.  MADISON.  1  Cr.  137-180 

L  Ed.  65.  A  later  ease  in  the  same  court,  however,  decided  that  the  Secre- 
tary of  the  Interior  might  be  enjoined  from  revoking  a  grant  of  a  right  of 
way  through  certain  lands  which  his  predecessor  had  given,  it  being  a 
plain  jfiolation  of  private  rights.  Noble  v.  Union  etc.  Co.,  147  U.  S.  171, 
37  L.  Ed.  125,  13  Sup.  Ct.  272.  But  it  has  been  held  that  the  courts  are 
without  jurisdiction  to  'enjoin  an  order  of  the  postmaster-general,  prohibit- 
ing a  certain  corporation  from  using  the  money  order  department,  he  hav- 
ing, in  the  exercise  of  a  discretionary  duty  imposed  by  Congi'ess,  decided 
that  the  corporation  was  using  the  mails  in  the  conduct  of  a  lottery. 
Enterprise  etc.  v.  Zumstein,  67  Fed.  1007,  37  U.  S.  App.  71. 

Nor  may  they  mandamus  the  speaker  of  the  State  assembly  to  compel 
him  to  transmit  a  bill  to  the  State  senate.  £x  parte  Echols,  39  Ala.  700, 
88  Am.  Dec.  751. 

Elsewhere  it  has  been  held  that  the  duty  of  a  county  clerk  in  making 
out  notices  for  an  election,  naming  the  offices  to  be  filled,  was  ministerial 
and  enforceable  by  mandamus.  Fisher  v.  Dabbs,  6  Yerg.  152.  As  also 
the  duty  of  a  court  clerk  to  issue  an  order  of  sale  upon  a  judgment  ren- 
dered. Moore  v.  Muse,  47  Tex.  210,  216.  And  the  duty  of  the  overseers 
of  a  highway  in  opening  a  certain  road  to  the  public  (State  v.  Holliday, 
8  N.  J.  L.  206,  208) ;  or  in  paying  assessed  damages  on  a  highway  laid  out 
by  them.  Treat  v.  Middletown,  8  Conn.  243,  247.  A  purchaser  at  execu- 
tion sale  may  mandamus  the  proper  officer  to  compel  delivery  of  a  deed  at 
the  expiration  of  the  redemption  period.  Whiting  v.  Butler,  29  Mich.  122, 
139.  A  North  Carolina  statute  required  the  treasurer  of  the  State  to 
deliver  over  to  a  railroad  company  certain  railroad  mortgage  bonds  upon 
tender  of  State  bonds ;  and  this  was  held  a  ministerial  duty,  although  there 
were  many  kinds  of  State  bonds  on  the  market,  and  it  was  sus:gestcd  that 
there  might  be  some  discretion  as  to  which  the  treasurer  was  to  accept. 
Kaleigh  etc.  R.  R.  v.  Jenkins,  68  N.  C.  502,  504.  While  an  executive  officer 
or  board  may  be  vested  with  discretion  as  to  the  manner  of  discharging 
certain  duties,  they  may  sometimes  still  be  mandamused  to  exercise  that 
discretion.  Howell  v.  Cooper,  2  Colo.  App.  531,  31  Pac.  523.  The  presi- 
dent of  a  municipal  council  may  be  compelled  by  mandamus  to  sign  an 
ordinance  where  his  refusal  rested  solely  upon  an  assumption  of  fact  as  to 
its  irregularity,  which  the  records  showed  to  be  erroneous.  State  ex  rel. 
V.  Meier,  143  Mo.  446,  43  S.  W.  307. 

But  where  the  terms  of  the  statute  prescribing  the  duty  whose  perform- 
ance is  sought  to  be  secured  by  mandamus  are  not  peremptory  and  manda- 
ton',  the  conclusion  is  that  the  officer  is  invested  with  discretion  in  the 
matter.  Accordingly,  where  a  statute  requires  a  State  treasurer  to  pay 
out  money,  if,  ''in  his  opinion"  the  amount  is  due,  the  duty  of  the  treas- 
nrer  in  that  connection  is  a  discretionary  one.  Louisiana  College  v.  State 
Treasurer,  2  La.  394,  396.  So,  also,  a  statute  declaring  that  ^^the  post- 
master may,  upon  evidence  satisfactory  to  him,"  that  a  person  is  conduct- 
ing any  fraudulent  lottery,  deny  to  such  person  the  privileges  of  the  regis- 
tered letter  and  money  order  system,  reposes  a  discretion  which  may  not 
be  controlled  by  injunction.  Enterprise  etc.  Assn.  v.  Zumstein,  64  Fed. 
840,  37  U.  S.  App.  71 ;  see,  also,  N.  0.  Nat.  Bk.  v.  Merchant,  18  Fed.  851. 

1—9 


1  Cr.  137-180  NOTES  ON'  U.  S.  REPORTS.  130 

The  Supreme  Court  of  Idaho  decided  that  mandamus  would  not  lie  to 
compel  the  Secretary  of  the  Territory  to  deliver  over  to  the  Speaker  of 
the  house  the  house  journal,  in  order  that  certain  corrections  might  be 
made  therein,  it  being  the  duty  of  the  secretary  to  keep  such  joum^,  and 
no  statutory  provision  requiring  its  delivery  under  such  circumstances. 
Burkhart  v.  Reed,  2  Idaho,  483,  22  Pac.  6. 

The  duty  of  the  President  of  the  nation  in  carrying  out  the  laws  is,  of 
course,  clearly  not  a  ministerial  duty,  although  the  question  was  considered 
sufficiently  doubtful  to  warrant  a  test  in  the  Federal  Supreme  Court. 
Mississippi  v.  Johnson,  4  Wall.  498,  18  L.  Ed.  441.  An  injunction  was 
there  sought  and  refused  against  President  Johnson  to  restrain  him  from 
signing  and  carrying  out  an  act  of  Congress  alleged  to  be  unconstitutional. 
The  appointment  and  removal  of  officers  and  employees  involves  the  exer- 
cise of  judgment  or  discretion,  and  is  not  controllable  by  mandamus.  Tay- 
lor V.  Kercheval,  82  Fed.  499.  Mandamus  to  a  State  officer  to  compel  the 
payment  of  coupons  upon  State  bonds  has  also  been  held  to  be  an  inter- 
ference with  the  political  department  of  the  government,  and  the  duty 
devolving  upon  such  officer  something  more  than  a  mere  ministerial  duty. 
Louisiana  v.  Jumel,  107  U.  S.  743,  27  L.  Ed.  459,  2  Sup.  Ct.  154.  The  duty 
of  choosing  a  site  for  public  buildings,  and  purchase  of  land  therefor,  is 
not  ministerial.  State  v.  Lord,  28  Or.  525,  43  Pac.  478.  Finally,  it  may 
be  added  that  in  applications  for  mandamus  against  an  executive  officer, 
the  courts  will  consider  the  practical  consequences  of  its  issuance,  and 
refuse  it  if  the  result  would  be  to  subvert  some  well-recognized  principle 
of  the  law;  as  that  the  sovereign  may  not  be  sued  except  by  consent 
(Reeside  v.  Walker,  11  How.  292,  113  L.  Ed.  701);  or  to  lead  to  some 
absurd  results,  as  to  compel  the  Secretary  of  War  to  sign  a  contract  with 
a  party  already  under  contract  to  perform  the  same  service  at  a  less 
amount.  United  States  ex  rel.  v.  Lamont,  155  U.  S.  308,  39  L.  Ed.  163, 
15  Sup.  Ct.  98.  This  is,  of  course,  no  more  than  saying  that  the  applicant 
must  establish  in  himself  a  legal  right  to  the  performance  of  the  act  sought, 
a  principle  underlying  the  issuance  of  the  writ  in  all  oases. 

The  question  of  the  right  to  mandamus  the  chief  executive  of  a  State 
presents  so  many  features  that  are  distinct  from  those  involved  in  the 
question  of  mandamus  to  other  executive  officers  as  to  justify  a  separate 
examination.  The  courts  seem  to  be  about  equally  divided  upon  the  ques- 
tion, some  holding  that  the  Governor  of  a  State  may  be  mandamused  to 
compel  the  performance  of  a  mere  ministerial  duty  involving  the  exercise 
of  no  discretion  and  which  might  as  well  have  devolved  upon  another 
officer;,  and  others,  that  under  no  circumstances  will  this  remedy  lie 
against  so  high  an  officer. 

The  citations  show  that  the  principal  case  has  been  cited  as  authority 
upon  both  sides  of  this  controversy,  and  in  cases  whose  conclusions  are 
directly  contradictory.  It  is  cited  in  the  following  cases,  affirming  the 
right  to  mandamus:  Tennessee  etc.  R.  R.  v.  Moore,  36  Ala.  380,  381, 
McCauley  v.  Brooks,  16  Cal.  41,  44,  52,  Middleton  v.  Low,  30  Cal.  601, 
Harpending  v.  Haight,  39  Cal.  210,  2  Am.  Bep.  445,  Greenwood  etc.  Co. 
V.  Routt,  17  Colo.  169,  81  Am.  St.  Bep.  294,  28  Pac.  1129 ,  Martin  v.  Ingham, 


131  MARBUBY  v.  MADISON.  1  Cr.  137-180 

38  Kan.  653,  657, 17  Pac.  169, 171 ,  Magruder  v.  Swann,  25  Md.  209 ,  Brown 
V.  Bragunier,  79  Md.  236,  29  Atl.  8,  Gotten  v.  Ellis,  7  Jones  (N.  C),  545,  550, 
State  ex  rel.  v.  Chase,  5  Ohio  St.  528,  535,  Mott  v.  Pennsylvania  R.  R., 
30  Pa.  St.  9,  33,  72  Aln.  Dec.  679 ,  State  ex  rel.  v.  Marks,  6  Lea,  21 ,  State 
V.  Farwell,  3  Pinn.  438 ,  and  see  Slack  v.  Jacob,  8  W.  Va.  662 ,  Woods  v. 
Sheldon,  9  S.  D.  407,  69  N.  W.  607.  It  is  relied  on  to  the  contrary  in 
Hawkins  v.  Governor,  1  Ark.  584,  589,  33  Am.  Dec.  849,  353,  Niles  v. 
Bradford,  22  Md.  184,  86  Am.  Dec.  645,  People  ex  rel.  v.  Morton,  156  N.  Y. 
141,  162,  66  Am.  St  Rep.  650,  50  N.  E.  792 ,  distinguished  in  State  ex  rel. 
V.  Drew,  17  Fla.  73,  74,  86,  State  ex  rel.  v.  Warmoth,  22  La.  Ann.  3,  2 
Am.  Rep.  714,  Dennett,  Petitioner,  32  Me.  511,  64  Am.  Dec.  603,  White 
Creek  etc.  Co.  v.  Marshall,  2  Baxt.  123 ,  Bates  v.  Taylor,  87  Tenn.  332,  11 
S.  W.  269,  and  rejected  and  criticised  as  dictum  in  Hovey  v.  State,  127 
Ind.  595,  22  Am.  St.  Rep.  668,  27  N.  E.  177,  People  ex  rel.  v.  Governor^ 
29  Mich.  320,  327,  18  Am.  Rep.  96,  Pacific  R.  R.  v.  Governor,  23  Mo.  359, 
66  Am.  Dec.  677,  State  ex  rel.  v.  Fletcher,  39  Mo.  394,  State  v.  Governor, 
25  N.  J.  L.  331,  352,  all  of  wliich  deny  the  right  to  mandamus  the  chief 
executive  of  a  State.  To  the  same  effect,  also,  are  State  v.  Lord,  28  <3r. 
525,  43  Pac.  478,  Low  v.  Towns,  8  Ga.  372.  On  the  whole,  therefore, 
while  courts  affirming  the  existence  of  the  right  to  mandamus  a  State 
Governor,  place  much  weight  upon  it  as  authority,  courts  holding  to  the 
eontrary  seek  rather  to  deny  its  applicability  in  the  matter  at  all.  Cer- 
tainly the  speeifie  question  of  the  right  to  mandamus  a  State  Governor 
was  not  at  all  in  the  mind  of  Chief  Justice  Manhall  in  the  leading  case, 
but  it  is  made  undeniable  by  the  citations  that  the  courts  affirming  the 
existence  of  the  right  have  placed  reliance  upon  certain  expressions  in 
the  opinion  which  may  well  be  considered  as  fully  applicable,  and  calcu- 
lated to  sustain  their  position.  Thus,  where,  after  disclaiming  all  in- 
tention to  interfere  in  the  political  affairs  of  trie  government,  the  court 
observes:  ''But  if  this  be  not  such  a  question,  ...  if  it  be  no  inter- 
meddling with  a  subject  over  which  the  executive  can  be  considered  as 
having  exercised  any  control;  what  is  there  in  the  exalted  station  of  the 
officer  which  shall  bar  a  citizen  from  asserting  in  a  court  of  justice  his 
1^^  rights,  or  shall  forbid  a  court  to  listen  to  the  claim,  or  to  issue  a 
mandamus,  directing  the  performance  of  a  duty  not  depending  on  execu- 
tive discretion  but  on  particular  acts  of  Congress  and  the  general  principles 
of  law."  And  again:  **It  is  not  by  the  office  of  the  person  to  whom  the 
writ  is  directed,  but  the  nature  of  the  thing  to  be  done  that  the  propriety 
or  impropriety  of  issuing  a  mandamus  is  to  be  determined."  ''Notwith- 
standing this  proposition  has  been  characterized  as  obiter,"  said  the 
Supreme  Court  of  Colorado,  referring  to  the  foregoing  in  affirming  the 
right  to  mandamus  the  State  Governor,  "it  has  served  as  a  text  for 
numerous  judicial  decisions,  State  and  Federal."  Greenwood  etc.  Co.  v. 
Routt,  17  Colo.  167,  31  Am.  St.  Rep.  292,  28  Pac.  1128. 

The  principal  case  has  also  been  cited  as  authority  with  respect  to  the 
eases  in  which  a  subordinate  court  or  judge  may  be  mandamused-  by  a 
higher  court.  It  has  been  seen  above,  supra,  that  courts  possessing  only 
appellate  jurisdiction  may  issue  the  writ  in  such  cases;  and  that  the  lead- 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  132 

ing  ease  settled  the  proposition  that  this  is  an  exercise  of  appelate  juris- 
diction. The  terse  principle  propounded  by  Chief  Justice  Marshall,  that 
it  is  not  the  person  to  whom  the  writ  is  directed,  but  the  nature  of  the 
thing  to  be  done  that  determines  the  propriety  of  its  issuance,  has  also 
been  followed  by  the  courts  in  determining  when  it  may  properly  issue 
to  a  subordinate  court  or  judge.  Here,  too,  we  find  that  it  is  a  cardinal 
rule  that  mandamus  is  not  to  be  made  a  means  for  controlling  and  direct- 
ing discretionary  matters.  Ex  parte  Newman,  14  Wall.  165,  20  L.  Ed. 
879;  People  v.  Pearson,  2  Scam.  204,  38  Am.  Dec.  448;  Ex  parte  Harris, 
52  Ala.  90,  23  Am.  Rep.  560;  Jelley  v.  Roberts,  50  Ind.  1,  4.  It  may  issue 
to  compel  the  performance  of  a  mere  ministerial  duty,  or  to  compel  a 
court  to  act  in  cases  in  which  it  has  jurisdiction  and  refuses  to  do  so. 
As  to  compel  a  circuit  judge  to  take  cognizance  of  a  case  properly  ap- 
pealed from  the  District  Court.  Insurance  Co.  v.  Comstock,  16  Wall.  270, 
21  L.  Ed.  498.  But  when  a  court  has  acted,  and  exercised  its  judicial  dis- 
cretionary power,  this  remedy  is  not  a  proper  method  of  obtaining  a  review, 
even  though  there  be  no  other.  Ex  parte  Newman,  14  Wall,  152,  20  L.  Ed. 
877.  Nor  is  it  proper  to  use  the  writ  to  re-examine  a  judgment  or  decree 
of  a  subordinate  court,  or  to  direct  what  judgment  or  decree  shall  be 
entered. 

The  rule  is  best  illustrated  by  those  cases  in  which  it  is  sought  to  com- 
pel a  subordinate  court  or  judge. to  sign  and  settle  a  bill  of  exceptions. 
This  is  a  ministerial  act,  and  it  is  well  settled  that  its  performance  may 
be  compelled  by  mandamus.  Ex  parte  Crane,  5  Pet.  189,  8  L.  Ed.  92; 
Jelley  v.  Roberts,  50  Ind.  1,  4;  People  v.  Pearson,  2  Scam.  (111.),  204,  33 
Am.  Dec.  448.  But  the  appellate  court  cannot  go  further  and  specify  the 
contents  of  a  bill,  or  direct  the  signing  of  a  particular  bill,  unless  the 
trial  judge  has  admitted  gits  entire  accuracy.  **A11  that  a  judge  can  be 
required  to  do  is  to  sign  such  a  bill  as  presents  the  facts  in  accordance 
with  his  knowledge  and  recollection,  since  this  must  necessarily  be  the 
test  in  determining  what  particular  bill  shall  be  signed."  High  on  Extraor- 
dinary Legal  Remedies,  §  202,  quoted  in  Jelley  v.  Roberts,  50  Ind.  1,  5. 
Nor  will  a  judge,  having  signed  and  sealed  one  bill  of  exceptions,  be  com- 
pelled to  sign  a  second,  where  he  alleges  the  first  to  be  correct  and  denies 
the  accuracy  of  the  second.  Or  where  the  first  was  inaccurately  drawn 
and  an  amended  bill  subsequently  offered,  the  judge  having  meantime  for- 
gotten the  circumstances  and  so  being  unable  to  vouch  for  the  accuracy 
of  the  bill  as  amended.  People  ex  rel.  v.  Anthony,  128  111.  223,  21  N.  E. 
781. 

But  the  applicability  of  mandamus  as  a  remedy  where  the  actions  of  a 
lower  court  are  concerned  is  not  limited  to  bills  of  exceptions.  Elsewhere 
it  has  issued  from  the  Supreme  Court  of  the  United  States  to  the  Federal 
Circuit  Court  to  compel  the  removal  of  a  cause  into  a  State  tribunal.  Vir- 
ginia V.  Rives,  100  U.  S.  327,  25  L.  Ed.  672.  A  judge  has  been  thus  com- 
pelled to  approve  the  bond  of  a  tax  collector,  there  being  no  other  objec- 
tion than  the  delay  of  the  officer  in  offering  the  same.  State  ex  rel.  v. 
Ely,  43  Ala.  576.  So,  also,  the  bond  of  a  sheriff,  Ex  parte  Harris,  52  Ala. 
87  90  23  Am.  Rep.  560.    The  Supreme  Court  of  Louisiana  has  compelled 


133  MARBURY  v.  MADISON.  1  Cr.  137-180 

a  probate  judge,  by  mandamns,  to  appoint  a  tutor  for  certain  minor  chil- 
dren (State  v.  Bermudez,  14  La.  478),  and  to  admit  ^  a  certain  will  to 
probate  (Succession  of  Wedderbum,  1  Rob.  (La.)  265) ;  while  the  Supreme 
Court  of  Tennessee  has  compelled  the  clerk  of  the  Probate  Court  to  trans- 
mit a  certain  record  to  the  County  Court  (Fisher  v.  Dabbs,  6  Yerg,  152), 
though  refusing  mandamus  to  a  judge  who  had  refused  to  grant  a  writ  of 
habeas  corpus.     State  v.  Elmore,  6  Cold.  531. 

The  principal  case  has  been  distinguished  on  the  syllabus  point  in  State 
V.  Huston,  27  Okl.  613,  84  L.  R.  A.  (N.  S.)  380, 113  Pac.  192,  District  Courts 
of  Oklahoma  have  no  jurisdiction  to  control  action  of  Governor,  even  in 
ministerial  acts;  dissenting  opinion  in  White  v.  Auditor,  126  N.  C.  609,  36 
S.  E.  144,  majority  holding  mandamus  lies  to  compel  auditor  to  issue  war- 
rant for  oyster  inspector's  salary. 

When  mandamus  is  the  proper  remedy  against  public  officers.     Note, 
98  Am.  St.  Rep.  874. 

Right  to  mandamus  against  public  officer.    Note,  16  E.  R.  0.  787. 

Mandamus  to  Governor.    Note,  6  L.  R.  A.  (N.  S.)  759,  765. 

Superintending  control  and  supervisory  jurisdiction  over  inferior  or 
subordinate  tribunal.     Note,  51  L.  R.  A.  67,  84,  104. 

Right  of  action  against  public  officers.     Note,- 1  E.  R.  0.  827. 

A  il^t  to  an  appointive  office  is  complete  when  the  appointing  power 
has  done  everytbing  to  be  perfonned  by  him.  Neither  delivery  of  the  com- 
miasion  nor  acceptance  is  necessary  to  complete  an  appointment.  When  com- 
plete it  is  irrevocable. 

Approved  in  Harrington  v.  Pardee,  1  Cal.  App.  280,  82  Pac.  84,  under 
Stats.  1887,  p.  67,  c.  57,  appointment  is  not  complete  until  commission  is 
issued;  United  States  v.  Newman,  42  App.  D.  C.  100,  Ann.  Oas.  1915D, 
1146,  inquiry  into  residential  qualifications  of  commissioner  of  District 
of  Columbia  not  judicial  invasion  of  executive  discretion  in  making  ap- 
pointments; In  re  William  Connors  Paint  Mfg.  Co.,  27  App.  D.  C.  391, 
commissioner  of  patents  may  refuse  to  register  trademark  in  simulation 
of  great  seal  of  the  United  States;  Commissioners  etc.  v.  Byars,  167  Ky. 
308,  180  S.  W.  381,  commissioner  of  motor  vehicles  appointed  for  definite 
term  cannot  be  removed  by  board  making  appointment  in  absence  of  stat- 
ute conferring  such  right;  Little  v.  Schul,  118  Md.  462,  84  Atl.  652, 
constable  lawfully  appointed  for  term  fixed  by  Constitution  could  not  be 
deprived  of  office  by  legislature;  McCarthy  v.  Commonwealth,  204  Mass. 
484,  90  ^N.  E.  879,  on  removal  of  member  of  district  police,  forty-eight 
hours  held  reasonable  notice ;  Germaine  v.  Ferris,  176  Mich.  593,  Ann.  Cas. 
1915B,  418,  46  L.  R.  A.  (N.  S.)  857,  142  N.  W.  741,  official  action  of  Gov- 
ernor in  removing  mayor  cannot  be  reviewed  by  certiorari  without  invasion 
of  executive  functions  of  government;  Attorney  General  v.  Oakman,  126 
Mich.  721,  86  N.  W.  152,  holding  senate  has  power,  before  action  taken 
on  vote,  to  reconsider  its  consent  to  an  appointment  by  the  Governor; 
Sperry  v.  Barber,  77  N.  J.  L.  56,  71  Atl.  64,  term  of  office  of  deputy  tax 
receiver  expires  with  that  of  tax  receiver  who  appointed  him;  Territory 


1  Cr.  137r-180  NOTES  ON  U.  S.  REPORTS.  134 

V.  Armijo,  14  N.  M.  219,  89  Pac.  272,  power  of  removal  cannot  be  implied 
from  appointing  power,  allowing  Governor  of  ten'itory  to  remove  sheriff 
elected  by  people;  Territory  v.  Armijo,  14  N.  M.  221,  89  Pac.  272,  Gov- 
ernor 's  power  to  commission  officers  elected  by  people  does  not  imply  power 
of  removal ;  Wheeler  v.  Lawson,  103  N.  Y.  40,  79  Am.  St.  Rep.  557,  57  N.  E. 
91,  holding  civil  service  provision  void;  State  v.  Breckinridge,  34  Okl.  659, 
126  Pac.  810,  appointment,  under  act  of  1909,  creating  Superior  Courts 
and  providing  that  Governor  appoint  judges  to  serve  until  1910  elections 
take  place,  continues  for  next  term  where  court  established  too  late  for 
1910  election;  State  v.  Rhame,  92  S.  C.  459,  461,  Ann.  Gas.  1914B,  519, 
75  S.  E.  883,  removal  of  State  bank  examiner  not  incident  to  Gk>vernor'8 
power  to  appoint  where  length  of  term  is  fixed  by  statute  and  no  authority 
to  remove  is  given;  Hardy  v.  Reamer,  84  S.  C.  490,  66  S.  E.  679,  statute, 
giving  mayor  and  aldermen  power  to  establish  board  of  police  commis- 
sioners with  four  year  term  does  not  authorize  removal  of  member  or  abol- 
ishing board  by  ordinance ;  State  v.  Tyrrell,  158  Wis.  433,  149  N.  W.  283, 
election  of  city  attorney  by  common  council  complete,  therefore  irrevocable. 
Issuing  of  certificate  by  city  clerk  ministerial  act  and  no  part  of  appoint- 
ing power ;  dissenting  opinion^  in  State  v.  Moores,  55  Neb.  527,  76  N.  W. 
190,  majority  holding  Laws  of  1897,  c.  10,  Comp.  Stats,  c.  12a,  void  as 
being  attempt  to  infringe  on  right  to  local  self-government. 

Distinguished  in  Mcfeeever  v.  Colvin,  31  Okl.  718,  123  Pac.  158,  Gov- 
ernor's power  to  fill  vacancy  in  office  of  county  assessor  not  exhausted  by 
one  appointment,  but  exists  until  successor  elected;  dissenting  opinion  in 
White  V.  Auditor,  126  N.  C.  610,  612,  36  S.  E.  144,  145,  majority  holding 
mandamus  lies  to  compel  auditor  to  issue  warrant  for  oyster  inspector's 
salary. 

The  citations  show  that  the  propositions  of  law  laid  down  in  the  syllabus 
have  been  extensively  relied  on  in  later  decisions.  The  rule  that  an  appoint- 
ment is  complete  when  the  last  act  to  be  done  by  the  appointing  power 
has  been  performed,  has  been  followed  and  approved  in  many  cases. 
Conger  v.  Gilmer,  32  Cal.  79;  People  v.  Perkins,  85  Cal.  513,  26  Pac.  247; 
Morgan  v.  Vance,  4  Bush  (Ky.),  323,  328;  State  ex  rel.  v.  Love,  39  N.  J.  L. 
14,  21;  People  ex  rel.  v.  Fitzsimmons,  68  N,  Y.  518;  State  v.  Hamilton  Co., 
7  Ohio,  145;  Lane  v.  Commonwealth,  103  Pa.  St.  485;  Seaman  v.  North- 
western Mutual  Life  Ins.  Co.,  86  Fed.  497.  It  holds  true  whether  the 
appointing  power  be  a  single  officer,  as  in  Marbury  v.  Madison,  or  an 
executive  board,  such  as  a  board  of  supervisors  (Conger  v.  Gilmer,  32 
Cal.  79) ;  or  a  mayor  and  board  of  aldermen  (State  ex  rel.  v.  Dews,  Charlt. 
(Ga.)  425,  430) ;  or  a  municipal  board  of  finance  and  taxation  (State  ex 
rel.  V.  Love,  39  N.  J.  L.  21).  It  is  not  at  all  necessary  that  the  api^int- 
ing  power  be  at  the  time  aware  that  its  acts  are  final.  A  nomination  to 
an  office,  made  under  the  erroneous  impression  that  the  approval  of  an- 
other body  was  necessary,  has  been  held  a  valid  appointment,  because 
the  appointing  power  had  performed  the  last  act  necessary.  People  ex  rel. 
V.  Fitzsimmons,  68  N.  Y.  519.  And  in  a  Virginia  case  a  board  of  bank 
directors  had  proceeded  to  a  second  election  thinking  the  first  to  have 
been  ineffective.    Booker  v.  Young,  12  Gratt.  309. 


/ 


135  MARBURY  v.  MADISON.  1  Cr.  137-180 

The  test  is  always  whether  the  final  act  has  really  been  performed,  not 
whether  the  appointing  power  so  intended  its  acts — ^provided,  .of  course, 
that  there  be  no  fraud  or  undue  influence.  A  Connecticut  case  will  illus- 
trate this  point.  A  municipal  common  council,  authorized  to  appoint  a 
prosecuting  attorney,  met  for  that  purpose  and  voted  'Ho  proceed  to 
ballot  for  a  prosecuting  attorney."  A  ballot  having  been  taken  and  one 
Coogan  having  received  a  clear  majority  of  all  the  votes  cast,  and  this 
result  being  announced  by  the  presiding  officer,  a  resolution  was  offered 
that  Coogan  be  declared  elected.  This  resolution  was  lost.  Two  resolu- 
tions were  then  offered  and  adopted,  one  declaring  the  ballot  to  be  void 
by  reason  of  errors  (which  ilf  was  found  did  not  exist),  and  the  other 
declaring  that  one  Barbour  be  deemed  '^  elected  and  appointed  prosecut- 
ing attorney."  The  court,  decided  that  the  first  vote  taken,  there  being 
no  fraud  of  any  kind,  was  valid  and  binding;  and  that  the  result  was  to 
confer  upon  Coogan  a  right  to  the  office.  State  ex  rel.  v.  Barbour,  53  Conn. 
89,  22  Atl.  689.  This,  however,  is  not  to  be  understood  as  depriving  a  de- 
liberative body  of  a  right  to  reconsider  its  acts  when  any  just  ground  for 
so  doing  exists,  as  an  illegal  vote,  or  a  participation  of  those  not  qualified. 

It  is,  of  course,  immaterial  that  the  appointment  is  not  to  take  effect 
until  some  future  day,  for  when  the  appointment  has  once  been  made^ 
it  is  final  and  irrevocable,  and  the  appointing  power  may  not  choose  another 
before  the  first  appointee  enters  upon  its  duties.  Whitney  v.  Van  Buskirk, 
40  N.  J.  L.  470. 

But  the  right  to  the  office  is  incomplete  so  long  as  anything  remains 
undone  by  the  appointing  power,  for  it  is  still  possible  by  refusal  to  per- 
form such  act  to  render  the  whole  proceedii^  nugatory.  An  Ohio  case 
illustrates  this  proposition.  There  the  question  was  as  to  the  validity 
of  an  appointment  to  the  office  of  clerk  of  a  County  Court.  The  claimant 
rested  his  case  upon  a  certain  writiilg  signed  by  three  of  the  four  judges, 
in  form  following:  **We  agree  to  the  appointment  of  Samuel  H.  Good- 
win to  the  office  of  clerk  of  the  Court  of  Common  Pleas,"  etc.;  and  upon 
the  order  given  for  the  entry  of  this  appointment  in  the  minute-book  of 
the  court  The  entry  was  in  fact  never  made,  and  the  appointment  was 
later  repudiated.  A  statute  required  that  the  minutes  of  the  court  should 
be  publicly  read  before  every  adjournment,  corrected,  and  then  signed  by 
the  presiding  judge;  and  that  ''no  proceedings,  orders,  judgments  or 
decrees  .  .  .  shall  be  in  force  or  valid  until  so  recorded  and  signed."  The 
court,  therefore,  held  that  the  appointment  was  not  completed  by  the  writ- 
ing, that  something  yet  remained  to  be  done,  and  that  until  the  signing 
of  the  minutes  containing  the  appointment  the  court  might  reconsider  and 
recall  its  former  actions.     State  v.  Hamilton  Co.,  7  Ohio,  134. 

In  the  proxx)sition  that  an  appointment  is  complete  upon  the  performance 
of  the  last  act  of  the  {^pointing  power  is  involved  the  further  propo- 
sition that  the  acceptance  of  such  appointment  is  unnecessary.  This  is 
undeniably  true  so  far  as  the  right  to  the  office  is  concerned.  The  Su- 
preme Court  of  Alabama  also  argued,  therefrom,  that  the  resignation  of 
an  officer  might  be  effective  before  acceptance.  State  ex  rel.  v.  Fitts,  49 
Ala.  402. 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  136 

But  the  eitations  have  not  interpreted  the  leading  case  as  holding  that 
the  appointee  is  completely  inducted  into  office  for  all  purposes.  In  an 
early  New  Hampshire  case  it  became  material  to  determine  whether  the 
office  of  collector  of  taxes  was  filled  by  one  J.,  who  had  been  appointed 
but  had  not  taken  the  oath  of  office,  or  by  a  later  appointee  whose  appoint- 
ment was,  of  course,  invalid  if  J.  was  actually  incumbent.  The  court  de- 
clared, per  Woodbury,  J.,  that  "In  no  case  can  the  office  itself  be  con- 
sidered as  filled  till  the  acceptance  of  the  appointment  by  the  person 
chosen."  Johnston  v.  Wilson,  2  N.  H.  203,  9  Am.  Dec.  51.  And,  again, 
in  a  Califoi^ia  case,  the  successful  candidate  for  the  office  of  State  Con- 
troller had  meanwhile  been  appointed  surveyor-general  by  the  Federal 
government  though  he  had  not  accepted  or  qualified  as  such.  The  State 
Constitution  prohibited  his  holding  both  offices,  and  the*  unsuccessful  can- 
didate, therefore,  claimed  the  commission  as  State  controller.  But  the 
court  held  that  as  his  competitor  had  not  accepted  or  qualified  for  the 
Federal  office,  he  did  not  hold  such  office  within  the  meaning  of  the  con- 
stitutional prohibition.  People  ex  rel.  v.  Whitman,  10  Cal.  38,  43,  44. 
"To  constitute  the  holding  of  an  office,  within  the  meaning  of  the  Constitu- 
tion," observed  the  court,  per  Burnett,  J.,  "there  must  be  the  concurrence 
of  two  wills — ^that  of  the  appointing  power  and  that  of  the  person  ap- 
pointed. If  the  mere  tender  of  a  commission  could  produce  this  result, 
then  it  would  be  in  the  power  of  the  President  to  disqualify  any  person 
from  holding  a  State  office  without  his  consent."  "To  a  complete  in- 
vestiture of  an  office,"  said  Mr.  Justice  Field  in  the  same  case,  "the  acts 
of  the  appointing  power  and  of  the  person  appointed  must  in  some  in- 
stances concur.  The  appointment  is  complete  when  the  commission  is 
signed  by  the  President,  but  it  is  competent  for  Congress  to  require  the 
performance  of  certain  acts  by  the  appointee,  such  as  the  execution  of 
security,  the  taking  of  the  oath  of  office,  and  the  like,  before  he  can  enter 
upon  the  possession  of  the  office. ' ' 

As  has  been  seen  above.  Chief  Justice  Marshall  sought  further  to  justify 
the  proposition  that  acceptance  was  not  necessary  to  complete  the  appoint- 
ment by  declaring  that  such  was  the  understanding  of  the  government 
upon  the  question,  calling  attention  to  the  fact  that  the  salary  of  an  officer 
commenced  from  the  appointment  and  not  from  the  transmission  or  accept- 
ance of  his  commission ;  and  also  observing,  that  where  an  appointee  refuses 
to  accept,  the  successor  is  nominated  in  his  place,  and  not  in  place  of  the 
one  originally  creating  the  vacancy.  The  latter  as  well  as  the  former  of 
these  propositions  seems  to  refer  to  a  mere  custom  of  the  executive  depart- 
ment of  the  government.  Justices  of  Jefferson  Co.  v.  Clark,  1  T.  B.  Mon.  85. 
Both  have  upon  occasion  been  misunderstood  and  regarded  as  holdings  of 
the  court  in  the  leading  case.  In  two  Maryland  cases  the  statement  that  the 
salary  of  an  officer  began  from  the  time  of  his  commission  was  made  the 
basis  of  a  claim  for  salary  from  the  date  of  an  election,  rather  than  the  day 
when  the  duties  of  the  office  were  formally  undertaken.  And  in  both,  the 
Supreme  Court  of  Maryland  criticised  this  "dictum"  of  Marbury  v.  Madi- 
son as  inaccurate,  in  holding  that  salary  properly  began  from  the  time 
when  the  appointee  qualified.     Thomas  v.  Owens,  4  Md.  220,  227;  Jump  v. 


lar  MARBURY  V.  MADISON.  1  Cr.  137-180 

Spence,  28  Md.  1,  11.  Elsewhere  the  statement  is  more  accurately  inter- 
preted as  the  custom  of  the  Federal  government  (Haight  v.  Love,  39  N.  J.  L. 
479,  23  Am.  Bep.  236);  or  the  common-law  role  applicable  in  the  absence 
of  statute  indicating  a  contrary  intent.    Burks  v.  Hinton,  77  Va.  37. 

The  second  statement,  that  an  appointee  before  acceptance  is  regarded 
as  so  far  invested  with  the  office  that  in  case  of  his  refusal  to  accept  the 
successor  is  nominated  in  his  place,  has  also  been  cited  as  though  a  propo- 
sition of  law  laid  down  by  the  court.  Johnson  v.  United  States,  5  Mason, 
4S8,  Fed.  Cas.  7419;  Booker  v.  Young,  12  Gratt.  309.  Mr.  Justice  Story 
so  interpreted  it,  suggesting  as  a  possible  deduction  that  a  new  appoint- 
ment, before  acceptance  by  the  appointee,  would  operate  as  a  complete 
removal  from  office  of  the  incumbent.  Johnson  v.  United  States,  5  Mason, 
425,  438,  Fed.  Cas.  7419.  The  true  purport  of  the  statement  is  properly 
understood  in  a  Kentucky  case,  and  by  the  reporter's  note  it  appears  that 
the  practice  of  the  State  executive  department  is  similar.  ^' There  is 
obviously,"  said  the  court,  ''in  the  practice  of  the  general  government, 
an  intrinsic  fitness  and  propriety;  for,  otherwise,  as  an  appointment  may 
be  refused  verbally,  there  would  be  nothing  in  the  records  of  the  execu- 
tive department  to  show  the  refusal,  and  two  or  more  appointments  would 
appear  to  have  been  made  to  fill  the  same  vacancy."  Justices  of  Jefferson 
Co.  V.  Clark,  1  T.  B.  Mon.  82,  85. 

It  thus  appears  from  the  foregoing,  that  while  an  appointment  to  office 
is  complete  when  the  last  act  of  the  appointing  power  has  been  performed, 
yet  that  until  acceptance  and  proper  qualification  the  appointee  is  not 
to  be  regarded  as  actually  holding  the  office  for  all  purposes.  The  unilat- 
eral act  of  the  appointing  power  cannot  be  made  the  means  of  fastening 
upon  such  appointee  obligations  or  duties  which  he  has  not  undertaken, 
and  of  which  perhaps  he  is  entirely  ignorant.  For  certain  incidental  or 
administrative  purposes  indeed,  the  appointment  does  suffice  in  legal  con- 
templation to  make  the  appointee  the  incumbent  of  such  office.  But  it  is 
safe  to  say  that  while  it  is  binding  upon  the  appointing  power,  and  while 
it  confers  upon  the  appointee  a  right,  it  may  not  be  made  an  instrument 
of  injustice  to  the  one  upon  whom  it  is  bestowed. 

Delivery  of  the  commission  is  no  more  necessary  to  confer  a  right  to  an 
office  than  is  acceptance  of  the  appointment.  The  proposition  is  of  more 
extensive  application  than  to  the  case  of  the  commission  to  an  office.  ''In 
all  cases  of  letters  patent,"  observed  Chief  Justice  Marshall,  "certain 
solemnities  are  required  by  law,  which  solemnities  are  the  evidences  of  the 
validity  of  the  instrument,  a  formal  delivery  to  the  person  is  not  among 
them."  1  Cr.  137,  159,  160.  See  Conklin  v.  Cunningham,  7  N.  M.  460, 
38  Pac.  174.  None  of  the  citations  on  this  point  are  concerned  with  com- 
missions to  an  office,  though  several  cases  cite  the  leading  case  in  holding 
that  delivery  is  not  necessary  to  the  validity  of  a  patent  to  public  lands. 
Sayward  v.  Thompson,  11  Wash.  709,  40  Pac.  380.  Accordingly  title 
passes  when  the  patent  has  been  duly  signed  and  sealed,  without  delivery. 
United  States  v.  Schurz,  102  U.  S.  395,  26  L.  Ed.  171 ;  Le  Roy  v.  Clayton, 
2  Sawy.  493,  496,  497,  Fed.  Cas.  8268.  An  entry  made  in  a  public  record 
of  a  grant  by  the  Sxmnish  government  in  the  early  days  has  been  held 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  138 

operative  to  pass  title.  Lavergne's  Heirs  v.  Elkins'  Heirs,  17  La.  227.  So, 
also,  an  entry  made  by  a  town  alcalde  in  the  official  book.  Donner  v. 
Palmer,  31  Cal.  513.  The  principle  of  the  leading  case  has  also  been  ap- 
plied to  the  case  of  a  prosecution  for  failure  to  obtain  a  steamboat  license. 
It  appeared  that  the  license  had  been  duly  executed,  sealed,  signed,  dated 
and  numbered,  but  not  actually  delivered  to  the  party;  and  the  court  held 
delivery  unnecessary  so  far  as  the  prosecution  was  concerned.  Steamboat 
Planter,  Newb.  267,  Fed.  Cas.  16,054. 

An  executive  pardon  has  been  held  to  differ  from  other  letters  patent 
and  to  require  delivery  for  its  validity.  In  re  De  Puy,  3  Ben.  316,  Fed. 
Cas.  3814.  A  delivery  by  transmission  to  the  warden  of  a  penitentiary 
has  been  held  sufficient  upon  the  analogy  of  Marbury  v.  Madison  (Ex 
parte  Powell,  73  Ala.  522,  49  Am.  Bep.  76) ;  though  delivery  to  a  United 
States  marshal  has  been  deemed  inoperative  to  deprive  of  the  right  of 
withdrawal  again.    In  re  De  Puy,  3  Ben.  316,  Fed.  Cas.  3814. 

While,  however,  delivery  is  not  generally  necessary  to  the  validity  of 
an  appointment,  there  may  be  circumstances  under  which,  by  the  terms 
of  the  appointment,  delivery  is  necessary  to  its  completion.  Thus,  where 
an  appointment  of  a  guardian  is  made  upon  the  express  condition  that 
it  is  to  be  delivered  to  the  appointee  when  the  proper  bond  is  filed,  and 
the  instrument  of  appointment  is  so  indorsed,  the  appointee  may  not  as- 
sume to  act  without  compliance  with  such  condition.  Fay  v.  Hurd,  8 
Pick.  631. 

Where  the  appointee  is  to  hold  at  will  the  appointment  is,  of  course, 
at  any  time  revocable  (Parson  v.  United  States,  167  U.  S.  337,  42  L.  Ed. 
189,  190,  17  Sup.  Ct.  884,  885);  but  in  all  other  cases  the  appointing 
power  has  no  further  control  over  the  appointment  after  the  performance 
of  the  last  act  necessary  to  its  validity.  In  other  words,  the  appointment 
is  then  irrevocable.  Speed  v.  Common  Council,  97  Mich.  207,  56  N.  W. 
573 ;  Brady  v?  Howe,  50  Miss.  621 ;  Myers  v.  Chalmers,  60  Miss.  772,  789 ; 
State  ex  rel.  v.  Love,  39  N.  J.  L.  21;  Whitney  v.  Van  Buskirk,  40  N.  J.  L. 
470 ;  People  ex  rel.  v.  Murray,  70  N.  Y.  526 ;  Ewirig  v.  Thbmpson,  43  Pa.  St. 
372,  375;  State  ex  rel.  v.  Barbour,  53  Conn.  85,  86,  55  Am.  Rep.  68,  69, 
22  Atl.  688,  689.  The  appointee  has  a  vested  right  to  the  office  which  the 
law  will  protect.  Butler  v.  White,  83  Fed.  578,  582,  588.  And  when  the 
power  of  appointment  has  once  been  exercised,  it  is  exhausted,  and  a  sub- 
sequent appointment,  in  the  absence  of  a  proper  revocation,  is  void.  State 
ex  rel.  v.  Finnerud,  7  S.  D.  245,  64  N.  W.  124.  The  remedy  of  an  ag- 
grieved appointee  is  often  mandamus  to  compel  the  performance  of  those 
ministerial  acts  necessary  to  invest  the  appointee  with  the  evidence  of 
office  which  may  be  necessary  in  the  particular  case.  As  to  compel  the 
approval  of  a  bond  by  a  board  of  aldermen.  Speed  v.  Common  Council, 
97  Mich.  207,  56  N.  W.  573.  In  a  proper  case  injunction  will  lie  to  re- 
strain a  subsequent  unlawful  appointee  from  taking  p>ossession  of  the 
office,  books,  etc.  Ewing  v.  Thompson,  43  Pa.  St.  372,  375;  and  see  Butler 
V.  Wbite,  83  Fed.  578,  588.  Or  where  the  purpose  is  to  oust  from  office 
one  improperly  installed,  and  to  secure  the  place  for  the  lawful  appointee, 
quo  warranto  is  the  proper  proceeding  to  try  the  title  to  such  office. 


139  MARBURY  v.  MADISON.  1  Cr.  137-180 

Brady  v.  Howe,  50  Miss.  621;  State  ex  rel.  Haight  v.  Love,  39  N.  J.  L. 
21 ;  Haight  v.  Love,  39  N.^J.  L.  479,  23  Am.  Rep.  236;  State  ex  rel.  Whit- 
ney V.  Van  Buskirk,  40  N.  J.  L.  470 ;  People  ex  rel.  v.  Murray,  70  N.  Y.  526. 

In  the  foregoing  discussion  of  the  irrevocability  of  appointments  and  of 
the  precise  time  when  an  appointment  becomes  complete  and  irrevocable, 
no  particular  reference  has  been  made  to  cases  in  which  the  title  to  an  office 
is  acquired  by  election  rather  than  by  appointment.  Nor  is  there  any 
distinction  to  be  drawn  between  the  two  classes  of  cases  so  far  as  the 
present  discussion  is  concerned.  In  each  the  essence  of  the  act  is  choice. 
And  in  both  instances  this  choice  is  irrevocably  made,  in  accordance  with 
the  principle  of  the  leading  case,  whenever  the  person  or  body  aggregate, 
invested  with  the  power  to  choose,  has  performed  the  last  act  required  of 
it  by  law.  Accordingly  the  authorities  have  extended  the  doctrine  of  the 
principal  case  to  controversies  as  to  the  title  to  an  elective  ofi&ce.  State 
ex  rel.  v.  Barbour,  53  Conn.  83,  55  Am.  Rep.  66,  22  Atl.  687;  Sprowl  v. 
Lawrence,  33  Ala.  674,  689;  Wright  v.  Lanckton,  19  Pick.  290;  State  v. 
Johnson,  17  Ark.  414. 

The  right  to  an  elective  office  rests,  therefore,  upon  the  choice  of  the 
electors  and  not  upon  the  commission,  just  as  an  appointment  depends 
upon  the  act  of  the  appointing  'power  and  not  the  actual  execution  and 
delivery  of  the  commission.  Accordingly,  when  a  candidate  has  received 
a  majority  of  the  votes  polled,  been  declared  elected  by  the  election  judges, 
and  commissioned  by  the  Gt)vemor,  he  is,  nevertheless,  not  duly  elected 
if  it  appear  that  the  majority  arises  because  of  the  votes  of  electors  not 
properly  qualified.  It  is  the  free  choice  of  the  qualified  electors  that 
confers  a  right  to  the  office.  State  v.  Johnson,  17  Ark.  414.  So,  also, 
where  an  academic  board  of  trustees  votes  that  a  certain  degree  be  con- 
ferred, this  vote  operates  to  confer  such  degree,  and  is  not  merely  i  an 
authority  to  the  president  or  other  competent  officer  to  do  so.  Wright  v. 
Lanekton,  19  Pick.  290.  Nor  can  the  failure  of  a  Secretary  of  State  to 
deliver  the  returns  of  an  election  for  Gk>vemor  to  the  Speaker  of  the 
house  of  representatives  deprive  the  party  elected  of  his  right  to  the  office. 
£x  parte  Smith,  8  S.  C.  519.  ''If  there  be  a  commission,  or  an  oath  of 
office,  or  any  ceremony  or  inauguration,  these  are  forms  only,  which  may 
or  may  not  be  necessary  to  the  validity  of  any  acts  under  the  appoint- 
ment, according  as  usage  or  positive  statute  may  or  may  not  render- 
them  indispensable."  Johnson  v.  Wilson,  2  N.  H.  202,  9  Am.  Dec.  50. 
The  filing  of  a  bond  on  oath  of  office  or  other  ceremony  is,  therefore,  not 
a  condition  precedent  to  the  vesting  of  a  title  to  an  office,  but  rather  a 
condition  subsequent  whose  nonperformance  may  or  may  not  operate  as 
a  defeasance.  Sprowl  v.  Lawrence,  33  Ala.  689,  690.  But  it  may  and 
will  be  a  condition  precedent  to  the  right  to  enter  upon  the  duties  of  an 
office.    State  ex  rel.  v.  Moffit,  5  Ohio,  366. 

The  principle  is,  of  course,  the  same  whether  the  election  be  by  popular 
vote  or  the  vote  of  a  deliberative  or  other  assembly.  A  board,  commis- 
sion or  other  small  executive  body  is  generally  held  to  appoint  rather  than 
elect.  The  same  has  been  held  of  a  municipal  counciL  State  ex  rel.  v. 
Barbour,  40  N.  J.  L.  76. 


/ 


I  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  140 

A  few  citations  upon  this  point  may  be  briefly  considered.  •  The  leading 
case  is  cited  to  the  point  that  if  an  office  is  created  and  the  term  of  office 
fixed  for  a  certain  definite  period  by  Congress  the  executive  may  not  re- 
move him  from  office  before  that  time  has  expired.  People  ex  rel.  v. 
Jewett,  6  Cal.  292.  A  proposition  which  seems  clearly  to  follow  from  the 
reasoning  of  Chief  Justice  Marshall.  But  even  where  a  statute  fixes  the 
term  of  office  for  a  definite  time,  it  may  yet  be  the  intent  of  the  statute 
to  invest  the  executive  with  the  further  power  of  removal  within  that  time. 
The  act  of  Congress  providing  that  United  States  district  attorneys  should 
hold  office  for  four  years  has  been  so  construed.  Parsons  v.  United  States^ 
167  U.  S.  335,  337,  42  L.  Ed.  189,  190,  17  Sup.  Ct.  884,  885.  And  the 
power  of  removal  has  been  somewhat  similarly  exercised  in  the  case  of 
judges  of  the  Alaska  territorial  court.  McAllister  v.  United  States,  141 
U.  S.  188,  189,  35  L.  Ed.  698,  11  Sup.  Ct.  954,  955.  And  these  cases  would 
seem  to  impair  the  authority  of  the  leading  case  upon  this  point  very 
materially.  The  citations  do  not  warrant  an  extended  discussion  of  the 
question  as  to  the  right  of  removal  in  the  case  of  an  officer  whose  term 
is  not  fixed  by  statute  and  who,  ,on  the  other  hand,  is  not  declared  to  be 
removable  at  will.  It  appears  to  be  a  mooted  point  (McDougal  v.  Quigon, 
27  Gratt.  136),  and  the  principal  case  has  certainly  not  been  regarded  as 
a  direct  authority  upon  the  question.  An  Illinois  case,  however,  cites  it, 
in  holding  that  the  Governor  might  not  remove  from  office  a  Secretary  of 
State  whose  term  was  not  prescribe\d,  upon  the  ground  that  the  legislature 
has  given  him-  no  express  authority  to  do  so.  Field  v.  People,  2  Scam. 
93,  129. 

Before  proceeding  to  a  discussion  of  the  citations  resx>ecting  the  nature 
and  legal  effect  of  a  commission  to  office,  a  few  further  citations  remain 
to  be  considered  under  the  head  of  appointments.  The  principal  case  is 
cited  to  the  point  that  the  power  of  making  appointments  is  in  general 
an  executive  rather  than  a  judicial  or  legislative  function.  State  ex  rel. 
Barbour,  53  Conn.  85,  55  Am.  Rep.  68,  22  Atl.  688 ;  State  ex  rel.  v.  Moores, 
76  N.  W.  190,  dissenting  opinion;  State  ex  rel.  Denny,  118  Ind.  465,  21 
N.  E.  279;  and  see  State  v.  Boucher,  3  N.  D.  403,  56  N.  W.  147.  And, 
accordingly,  a  statute  creating  a  fire  department  in  a  town,  and  naming 
the  first  board  of  commissioners,  is  defective  for  this  reason,  as  well  as 
because  inconsistent  with  the  right  of  local  self-government.  State  ex  rel. 
v.  Denny,  118  Ind.  465,  21  N.  E.  279 ;'  and  see  State  ex  rel.  v.  Moores,  76 
NI  W.  176.  But  a  somewhat  similar  provision  in  the  charter  of  a  muni- 
cipal corporation  in  which  the  legislature  named  the  initiatory  board  of 
trustees  was  held  valid,  it  being  declared  that  an  appointment  is  not  neces- 
sarily or  essentially  an  executive  act.  State  v.  Swift,  11  Nev.  136;  and 
see  Collins  v.  State,  8  Ind.  351;  State  v.  Boucher,  3  N.  D.  403,  56  N.  W. 
147.  These  cases  would  seem  to  indicate  a  conflict  among  the  authorities 
on  this  point,  into  which  we  may  not  enter.  The  validity  of  an  appoint- 
ment, however,  is  clearly  a  judicial  question.  Rice  v.  State,  7  Ind.  335. 
A  Louisiana  case  makes  the  principal  case  authority  for  the  proposition 
that  an  officer  appointed  for  an  unexpired  term  does  not  hold  beyond 
that  term.     Andrews  v.  Saucier,  13  La.  Ann.  303.    In  citing  and  quoting 


141  MARBURY  v.  MADISON.  1  Cr.  137-180 

from  the  principal  case  to  the  point  that  an  appointment  must  be  evi- 
denced by  some  "open  unequivocal  act/'  the  Kentucky  Court  of  Appeals 
held  that  a  writing  was  not  necessary  to  an  appointment  made  by  the 
judges  of  a  court  under  a  statute  prescribing  no  particular  method  of 
making  the  appointment,  and  declared  that  an  oral  appointment  was  valid 
and  binding.  Hoke  v.  Field,  10  Bush,  146,  19  Am.  Bep.  59.  Again  the 
principal  case  is  cited,  to  the  point  that  '^ nominate"  means  to  recommend 
for  confirmation,  whence  the  Supreme  Court  of  Montana  argued  that  the 
appointment  of  a  Governor  without  the  requisite  consent  of  the  legislative 
counsel  was  ineffective.  Territory  ex  rel.  v.  Rodgers,  1  Mont.  259.  And 
in  Lapeyre  v.  United  States,  17  Wall.  205,  21  L.  Ed.  610,  the  dissenting 
judges  found  it  necessary  to  distinguish  the  principal  case,  the  majority 
having  held  a  proclamation  of  the  chief  executive  operative  when  signed 
and   sealed  without  publication. 

When  appointment  to  public  office  is  complete.    Note,  Ann.  Oas.  1914D, 
304,  306. 

Right  of  appointing  power  to  remove  officer  when  term  of  office  is 
fixed.    Note,  Ann.  Oas.  1914B,  525. 

The  coimnission  of  an  appointee  to  an  (Mce  is  mere  evidence  of  bis  title 
and  not  neceesaxy  to  ita  vecrtiture.  As  against  the  appointing  power  it  is  oon- 
dnflive  evidence. 

The  rule  of  the  principal  case,  that  a  commission  to  office  is  merely  evi- 
dence of  title  and  not  necessary  to  the  vesting  of  a  right  to  the  office,  has 
often  been  cited.  Sprowl  v.  Lawrence,  33  Ala.  689;  State  ex  rel.  in  re 
Strawbridge,  39  Ala.  367,  386;  State  ex  rel.  v.  Peelle,  124  Ind.  520,  24 
N.  E.  442;  Allen  v.  M'Neel,  1  Mills,  459,  463;  State  v.  Toomer,  7  Rich. 
216,  227;  Billy  v.  State,  2  Nott  &  McC.  361.  Accordingly,  it  has  been 
held  that  the  proceedings  of  a  justice  of  the  peace,  duly  appointed,  but 
without  his  commission,  are  not  thereby  invalidated.  Billy  v.  State,  2 
Nott  &  McC.  361.  And  that  an  exemption  from  military  duty  having  been 
duly  declared,  the  mere  failure  to  make  out  the  certificate  would  not  make 
such  exemption  inoperative.     State  ex  rel.  in  re  Strawbridge,  39  Ala.  386. 

The  proposition  that  a  commission  is  conclusive  evidence  of  title,  as 
against  the  appointing  power,  has  also  been  cited.  Quimby  v.  Boyd,  8 
Colo.  207,  6  Pac.  470.  Whence  it  has  been  argued  that  a  commission  is 
conclusive  evidence  that  the  appointment  has  been  regularly  made;  and 
that  a  clerical  error  in  the  date  affixed  to  the  commission  of  a  notary  pub- 
lic was  inoperative  to  defeat  a  conveyance  of  land  in  the  execution  of 
which  the  notary  participated.  Quimby  v.  Boyd,  8  Colo.  207,  6  Pac.  470. 
But  if  the  title  to  the  office  is  derived  from  some  other  source,  it  is  held 
only  prima  facie  evidence.  State  ex  rel.  v.  Peelle,  124  Ind.  520,  522,  24 
N.  £.  442.  So,  also,  as  against  another  claimant  it  is  merely  prima  facie 
evidence,  and  as  such  'enables  the  possessor  to  hold  the  office  pending  a 
judicial  settlement.     Supervisors  etc.  v.  0  'Malley,  46  Wis.  59,  50  N.  W.  525. 

Being  in  the  nature  of  *'best  evidence  *'  of  title  to  an  office,  its  produc- 
tion is  sometimes  necessary  to  prove  that  one  is  an  officer  de  jure,  as 
well  as  de  facto.    Thus,  it  has  been  required  of  the  officer  of  a  ship  claim- 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  142 

ing  prize  money  as  an  officer,  that  he  produce  his  commission,  the  court 
holding  that  proof  of  his  having  acted  as  officer  was  insufficient.  Allen 
V.  M'Neel,  1  Mills,  463. 

The  fact  that  no  valid  commission  has  been  issued  to  an  officer  cannot 
be  set  up  as  a  defense  in  an  action  upon  his  bond,  if  it  appear  that  other- 
wise he  has  been  duly  appointed.  State  v.  Toomer,  7  Rich.  227.  See  Ver- 
ner  v.  Seibels,  60  S.  C,  576,  39  S.  E.  275>  holding  officer's  term  commences 
to  run  from  date  of  commission. 

CommisBlon  duly  ordered  to  be  recorded  is  to  be  considered  as  recorded. 

In  the  principal  case  it  was  held  that  when  the  recording  of  a  commis- 
sion had  been  duly  ordered,  the  instrument  was  to  be  considered  as  re- 
corded, although  "the  manual  labor  of  inserting  it  in  a  book  kept  for  that 
purpose  may  not  have  been  performed."  The  learned  chief  justice  also 
intimated  that  this  rule  is  of  more  extended  application  than  to  commis- 
sions; and  holds  good  of  "any  instrument  whatever"  required  to  be  re- 
corded. The  Supreme  Court  of  Ohio  has  adopted  and  acted  upon  this 
view.  King  v.  Kenny,  4  Ohio,  83.  In  that  case  the  question  was  whether 
a  certain  public  highway  had  been  legally  established.  The  statute  pro- 
vided that  the  proposed  road  should  be  viewed  and  surveyed,  "and  that 
the  survey  and  report  of  the  viewers"  be  recorded,  and  from  thenceforth 
such  road  should  be  a  public  highway.  Through  the  fault  of  the  clerk  of 
the  commission  no  such  record  had  been  made,  but  the  court  held  that  this 
ministerial  nonfeasance  should  not  be  allowed  to  render  the  whole  proceed- 
ing nugatory.  The  same  court  has  also  held  immaterial  a  failure  of  a 
town  clerk  to  record  a  special  permit  granted  by  the  town  trustees  and  by 
them  ordered  recorded.  Ratcliff  v.  Teters,  27  Ohio  St.  81.  In  still  another 
case  it  intimated,  in  accordance  with  this  principle,  that  the  failure  of  a 
county  clerk  to  file  the  power  of  deputy  of  a  deputy  sheriff  would  not 
operate  so  as  to  invalidate  the  power.  Lessee  of  Haines  v.  Lindsey,  4 
Ohio,  90,  19  Am.  Dec.  588.  So,  also,  where  the  recording  of  a  will  has 
been  ordered  by  a  probate  judge,  and  every  act  performed  save  the  actual 
recording,  the  will  is  deemed  in  law  as  recorded.  McClaskey  v.  Barr,  47 
Fed.  170.  While  the  Supreme  Court  of  North  Carolina,  by  a  question- 
able extension  of  the  principle,  has  held  that  a  deed  of  trust  duly  proved 
but  not  registered  within  six  months  as  required,  owing  to  the  death  of 
the  raster,  though  registered  upon  the  appointment  of  his  successor 
thereafter,  was  to  be  considered  as  duly  registered.  Moore  v.  Collins,  3 
Dev.  140.  This  case,  however,  seems  to  lack  the  essential  element  upon 
which  the  soundness  of  the  principle  rests.  An  instrument  is  considered 
as  recorded  when  it  has  been  so  ordered  by  a  competent  power,  because 
the  issuance  of  the  order  by  a  superior  power  to  an  inferior  ministerial 
officer  with  no  choice  but  to  obey  is  the  real  fact  which  makes  the  record 
binding  at  law.  The  foregoing  is  a  case  where  the  registering  of  the  deed 
was  a  duty  imposed  upon  an  individual  for  his  own  protection  and  is 
plainly  distinguishable;  William  Firth  Co.  v.  South  Carolina  Loan  etc. 
Trust  Co.,  122  Fed.  577,  holding  mortgage  covering  cotton  mill  and  machin- 
ery therein  valid  as  to  machinery  though  recorded  only  in  record  for  realtv 


143  MARBURY  v.  MADISON.  1  Cr.  137-180 

mortgages ;  Holmes  v.  Cleveland  C.  etc.  Co.,  93  Fed.  108,  holding  where  use 
by  a  city  of  a  street  is  by  express  l^slative  authority  it  is  presumed  for 
benefit  of  public. 

The  courtB  have  no  authority  to  Inquire  Into  and  control  political  matters 
left  by  law  to  the  executive  discretion. 

Approved  in  Bonbright  v.  Schoettler,  127  Fed.  324,  holding  void  Penn- 
sylvania fire-escape  act  of  June  11,  1879,  official  certificate  of  approval, 
properly  issued,  is  conclusive  evidence  of  compliance  with  act  and  protects 
o-wTier  of  building  from   liability  thereunder  for  either  the  penalty  or 
damages;  Attorney  General  v.  Renihan,  184  Mich.  282,  151  N.  W.  326, 
vacancies  in  Superior  Court  must  be  filled  by  Governor  under  constitutional 
prcn-ision,  not  by  municipal  council  as  charter  provides ;  Atkinson  v.  Wood- 
mansee,  68  Kan.  81,  90,  64  L.  R.  A.  825,  74  Pac.  644,  647,  holding  void 
Gen.  Stats.  1901,  §  5125,  permitting  recovery  of  attorneys'  fees  as  costs 
in  mechanics'  liens  .cases ;  Territory  v.  Armijo,  14  N.  M.  224,  89  Pac.  274, 
executive  power  vested  in  Governor  of  New  Mexico  by  organic  act  does 
not  include  right  to  remove  an  officer  elected  in  accordance  with  tenitorial 
law.     There  remain  a  few  cases  in  which  the  courts  have  considered  Mar- 
bury  V.  Madison  as  a  helpful  authority  in  the  settlement  of  some  of  the 
other  manifold  questions  growing  out  of  this  peculiar  feature  of  our  gov- 
ernment.   They  make  it  plain  that  the  courts  have  adhered  to  the  rule  of 
the  leading  case  which  disclaims  all  right  to  intermeddle  in  the  political 
or  discretionary  duties  of  the  executive.'    In  re  Kaine,  14  How.  119,  128, 
14  L.  Ed.  351,  355,  Durand  v.  HoUis,  4  Blatchf.  454,  Fed.  Cas.  4186,  State 
V.  Churchill,  48  Ark.  443,  3  S.  W.  360 ,  Burch  v.  Hardwicke,  23  Gratt.  51, 
60,  Druecker  v.  Salomon,  21  Wis.  629,  94  Am.  Dec.  577,  Worthington  v. 
Scribner,  109  Mass.  487,  490,  12  Am.  Dec.  739,  Morton  v.  Green,  2  Neb. 
455,  Tennant's  Case,  3  Neb.  409,  19  Am.  Rep.  634,   and  see  Slack  v. 
Jacob,  8  W.  Va.  662 ,  Woods  v.  Sheldon,  9  S.  D.  407,  410,  69  N.  W.  607, 
608.    Accordingly,  in  an  action  of  false  imprisonment  against  a  State  Gov- 
ernor for  enforcing  a  draft  of  soldiers  ordered  by  the  President  of  the 
United  States,  the  court  declined  to  consider  the  question  whether  the 
executive  was  justified  in  calling  out  troops,  holding  that  in  such  a  mat- 
ter the  judgment  and  discretion  of  the  executive  was  supreme.    Druecker 
V.  Salomon,  21  Wis.  629,  94  Am.  Dec.  577.    Neither  will  a  court  of  law, 
at  the  suit  of  a  municipal  corporation  court,  stay  an  investigation  insti- 
tuted by  the  municipal  executive  into  the  conduct  of  the  chief  of  police. 
Burch  v.  Hardwicke,  23  Gratt.  60.     An  order  of  the  executive  through  the 
Secretary  of  the  Navy  for  the  bombardment  of  a  certain  port  is  a  political 
act;  and  an  action  for  damages  will  not  lie  against  the  latter  for  the 
destruction  of  the  private  property  of  a  neutral  in  the  bombarded  town. 
Durand  v.  Hollins,  4  Blatchf.  454,  Fed.  Cas.  4186.     So,  also,  in  arresting 
and  surrendering  over  an  English  fugitive  from  justice,  a  United  States 
commissioner  would  seem  to  be  acting  politically  so  that  habeas  corpus 
will  not  lie  to  review  the  detention.    In  re  Kaine,  14  How.  119,  128,  14 
la.  Ed.  351,  355.     Again,  a  department  of  the  executive,  such  as  the  treas- 
juy,  cannot  be  compelled  to  divulge  the  name  of  the  informant  who  pro- 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  144 

cured  the  prosecution  of  a  charge  for  defrauding  the  revenue.  The  case 
has  been  likened  to  that  of  official  or  cabinet  secrets  which  the  leading 
case  intimates  are  not  the  subject  of  judicial  investigation.  Worthington 
V.  Scribner,  109  Mass.  490,  12  Am.  Rep.  739.  And  it  has  been  held  that  a 
public  officer  of  the  United  States  cannot  be  garnisheed  as  to  moneys  due 
from  the  United  States  to  a  private  individual.  Averill  v.  Tucker,  2  Cr. 
C.  C.  546,  Fed.  Cas.  670. 

A  State  Governor  is  acting  politically  in  issuing  a  proclamation  calling 
for  a  convention  of  the  legislature;  and  the  act  may  not  be  called  in 
question  in  a  court  of  law.  Tennant's  Case,  3  Neb.  429.  Until  the  grant- 
ing or  refusal  of  a  patent  to  land  by  the  land  department  there  is  no 
ground  for  judicial  interference.  Morton  v.  Green,  2  Neb.  441,  455.  But 
the  question  of  eligibility  to  political  office  is  a  legal  an^  not  a  political 
question.     State  v.  Gleason,  12  Fla.  260. 

An  early  case  tried  before  Chief  Justice  Cranch  in  the  Circuit  Court 
for  the  District  of  Columbia  is  interesting  as  illustrating  the  extent  to 
which  the  theory  of  the  immunity  of  the  executive  from  judicial  super- 
vision was  at  one  time  sought  to  be  carried.  The  case  was  an  indictmient 
for  obtaining  money  by  false  pretenses,  against  the  fourth  auditor  of  the 
United  States,  in  which  were  alleged  certain  frauds  perpetrated  against 
the  government  by  that  officer  in  the  discharge  of  his  duties.  For  the 
defendant  it  was  argued,  among  other  things,  that  in  deciding  his  guilt  or 
innocence  it  was  necessary  to  inquire  into  the  extent  of  his  powers  and 
duties  as  fourth  auditor;  that  no  judicial  tribunal  had  power  to  question 
his  official  acts  unless  they  violated  the  vested  rights  of  some  individual; 
and  that  so  long  as  they  affected  the  public  only  they  must  be  left  to  the 
control  of  his  superior  executive  officer.  Marbury  v.  Madison  was  cited 
in  support  of  this  position,  which,  it  is  scarcely  necessary  to  say,  was  not 
accepted  as  sound  by  the  court.  Clearly,  the  acts  were  not  exclusively 
official  acts  and  such  as  involved  no  breach  of  a  specific  duty  imposed  by 
law.    United  States  v.  Watkins,  3  Cr.  C.  C.  441,  589,  Fed.  Cas.  16,649. 

From  the  proposition  that  in  those  matters  within  the  discretion  of  the 
executive  department  that  discretion  is  supreme  and  unlimited,  except 
politically  or  so  far  as  controlled  by  the  dictates  of  conscience;  and  from 
other  similar  holdings  respecting  the  legislative  and  judicial  departments, 
the  Federal  Supreme  Court  in  a  later  case  drew  a  generalization  wliich 
has  been  quoted  in  an  interesting  line  of  cases.  'It  is  a  universal  prin- 
ciple," declared  the  court,  "that  where  power  or  jurisdiction  is  delegated 
to  any  public  officer  or  tribunal  over  a  subject  matter,  and  its  exercise  is 
confided  to  his  or  their  discretion,  the  acts  so  done  are  binding  and  valid 
as  to  the  subject  matter;  and  individual  rights  will  not  be  disturbed  col- 
laterally for  anything  done  in  the  exercise  of  that  discretion  within  the 
authority  and  power  conferred.  The  only  questions  which  can  arise  .  .  . 
are  power  in  the  officer  and  fraud  in  the  party.  All  other  questions  are 
settled  by  the  decision  made  or  the  acts  done  by  the  tribunal  or  officer; 
whether  executive  .  .  .  legislative  ,  .  .  judicial  ...  or  special  .  .  .  unless 
an  appeal  is  provided  for,  or  other  revision  by  some  appellate  or  super- 


145  MARBURY  v.  MADISON.  1  Cr.  137-180 

▼isoiy  tiibunal  is  prescribe4  by  law."    United  States  v.  Arredondo,  6  Pet. 
729,  8  K  Ed.  561. 

It  has  been  made  authority  in  cases  involving  the  question  of  the  valid- 
ity of  a  grant  of  land  from  the  State  or  sovereign,  for  the  proposition  that 
sach  a  grant  made  by  an  officer  of  the  government,  within  the  apparent 
scope  of  his  authority,  was  presumptively  sufficient  to  pass  the  government 
title  in  the  premises.  United  States  v.  Arredondo,  6  Pet.  729,  8  L.  Ed. 
561 ;  Ryder  v.  Innerarity,  4  Stew.  &  P.  30 ;  McConnell  v.  Wilcox,  1  Scam. 
351.  This  presumption,  however,  has  been  held  to  be  insufficient  as 
i^ainst  parties  claiming  a  pre-existing  adverse  and  paramount  title  in 
themselves.  Sabariego  v.  Maverick,  124  U.  S.  282,  31  L.  Ed.  439,  8 
Sup.  Ct.  472.  If  the  grant  is  to  be  upon  certain  conditions,  it  is  conclu- 
sive upon  the  point  that  those  conditions  are  performed.  United  States 
V.  California  etc.  Land  Co.,  148  U.  S.  44,  37  L.  Ed.  360,  13  Sup.  Ct.  463. 
So,  also,  it  is. cited  to  the  point  that  a  court  has  the  power  to  determine 
its  own  jurisdiction,  and  that  its  judgments  are  not  void  but  voidable. 
Borden  v.  State,  11  Ark.  548,  54  Am.  Dec.  217,  238.    ' 

Power  of  courts  to  enforce  ministerial  duties  of  heads  of  departments. 
Note,  52  L.  B.  A.  (N.  S.)  419,  420,  427. 

It  is  not  only  the  right  but  the  duty  of  the  judiciary  to  pass  upon  and 
declare  void  statutes  in  conflict  with  the  organic  law,  otherwise  consUtutional 
limitations  would  he  vainly  imposed.    Ours  is  a  government  of  laws,  not  or 
men.    The  courts  may  not  investigate  matters  left  to  the  legislative  discretion. 
Approved  in  Muskrat  v.  United  States,  219  U.  S.  356,  357,  358,  55  L.  Ed. 
250,  251,  31  Sup.  Ct.  250,  act  of  Congress,  authorizing  suits  by  Cherokee 
Indians  with  appeal  to  Federal  Supreme  Court  to  determine  validity  of 
former  acts  of  Congress  before  case  had  arisen,  is  invalid ;  Downes  v.  Bid- 
well,  182  U.  S.  289,  45  L.  Ed.  1107,  21  Sup.  Gt.  787,  holding  Porto  Rico  not 
part  of  United  States  within  taxing  clause  of  Constitution;  Fairbank  v. 
United  States,  181  U.  S.  285,  45  L.  Ed.  864,  21  Sup.  Ct.  649,  holding  void 
stamp  tax  on  foreign  bill  of  lading  as  tax  on  exports ;  Kansas  City  Gas  Co. 
v.  Kansas  City,  198  Fed.  513,  defendant  enjoined  from  lev3dng  penalties 
upon  gas  company  under  municipal  ordinance   "impairing  obligation  of 
contract"  within  Federal  Constitution;  Kansas  Natural  Gas  Co.  v.  Has- 
kell, 172  Fed.  557,  statute  of  Oklahoma,  prohibiting  transportation  or  sell- 
ing of  natural  gas  outside  State,  void  as  attempt  to  interfere  with  inter- 
state commerce;  St.  Louis  etc.  R.  Co.  v.  Hadley,  168  Fed.  357,  statutes 
.  establishing  freight  and  passenger  rates  in  Missouri  is  confiscatory  and 
unconstitutional;  United  States  v.  Delaware  &  H.  Co.,  164  Fed.  235,  "com- 
modities  clause"  of  Interstate   Commerce   Act,   interfering   with   vested 
rights  o'f  railroads  in   coal   lands   in   Pennsylvania,   conflicts   with   fifth 
amendment  to  Federal  Constitution ;  Southern  Ry.  Co.  v.  McNeill,  155  Fed. 
783,  784,  pending  decision  as  to  constitutionality  of  North  Carolina  stat- 
ute. Federal  court  issues  injunction  to  restrain  enforcement  of  passenger 
and   freight  rates   established   by   State  railroad   commission;   Hume   v. 
Laurel  Hill  Cemetery,  142  Fed.  563,  holding  void  San  Francisco  ordinance 
prohibiting  burials  within  city  limits ;  Jew  Ho  v.  Williamson,  103  Fed.  17, 

I— 10 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  146 

holding  void  a  munieipal  regulation  establishing  qaarantine  against  Chinescf 
in  district,  but  not  against  others;  State  v.  Joseph,  175  Ala.  597,  Ann. 
Oas.  1914D,  248,  57  South.  948,  whether  bill  constitutionally  enacted  and 
contains  all  provisions  enacted  by  Assembly  must  be  determined  by  en- 
rolled bill  and  journals,  and  cannot  be  impeached  by  memorandum  of  Gov- 
ernor's secretary;  Curran  Bill  Posting  etc.  Co.  v.  Denver,  47  Colo.  225, 
27  L.  R.  A.  (N.  S.)  544,  107  Pac.  263,  ordinance  of  city  of  Denver  regu- 
lating billboards  unreasonably  restricts  use  of  private  property  and  is  not 
valid  exercise  of  police  power  of  State;  State  v.  Travelers'  Ins.  Co.,  73 
Conn.  260,  47  Atl.  300,  upholding  Gen.  Stats.,  §  3916,  taxing  insurance 
companies  for  stock  held  by  nonresident ;  Bernardin  v.  Seymour,  10  App. 
D.  C.  315,  decisions  of  commissioner  of  patents  in  issuance  of  patents  are 
exercise  of  judicial  not  executive  power,  and  statute  giving  Court  of  Ap- 
peals power  to  review  is  valid ;  State  v.  Holmes,  53  Fla.  229,  44  South.  180, 
on  mandamus  to  compel  issuance  of  liquor  license  by  county  commission- 
ers, question  of  constitutionality  of  statute  may  be  determined,  though  it 
does  not  affect  commissioners  personally;  Ex  parte  Crane,  27  Idaho,  682, 
151  Pac.  1009,  act  prohibiting  manufacture  or  sale  of  intoxicating  liquor 
within  prohibition  district  is  reasonable  exercise  of  police  power;  Haller 
Sign  Works  v.  Physical  Culture  Training  School,  249  111.  441,  34  L.  R.  A. 
(N.  S.)  998,  94  N.  E.  922,  statute  prohibiting  erection  of  billboards  within 
five  hundred  feet  of  public  park  in  city  of  one  hundred  thousand  popula- 
tion is  an  unreasonable  attempt  to  limit  the  use  of  private  property  and 
not  within  police  power ;  EUingham  v.  Dye,  178  Ind.  386,  Ann.  Gas.  19150, 
200,  99  N.  E.  19,  act  providing  for  vote  of  electors  on  proposed  new  con- 
stitution and  not  complying  with  Constitution  is  invalid;  State  v.  City  of 
Lawrence,  79  Kan.  246,  100  Pac.  489,  act  authorizing  city  of  Lawrence  to 
issue  bonds  in  aid  of  University  is  not  repugnant  to  constitutional  pro- 
vision prohibiting  conferring  corporate  powers  by  special  act;  Bosworth 
V.  State  University,  166  Ky.  444,  179  S.  W-  407,  appropriation  clause  not 
indicated  ip  title  in  act  providing  for  chemical  analysis  of  food  is  invalid ; 
Ragland  v.  Anderson,  125  Ky.  155,  128  Am.  St.  Rep.  242,  100  S.  W.  868, 
act  redistricting  State  into  representative  districts  unequal  in  population 
is  void ;  Painter  v.  Mattf eldt,  119  Md.  472,  87  Atl.  416,  act  to  create  good 
roads  commission,  not  showing  by  title  that  people  were  taxed  in  other 
ways  than  by  bonds,  is  void;  Winslow  Elevator  &  Machine  Co.  v.  Hoff- 
man, 107  Md.  636,  17  L.  R.  A.  (N.  S.)  1130,  69  Atl.  396,  losses  of  rents  ef 
office  building  are  not  direct  and  natural  result  of  breach  of  contract  to 
install  an  elevator,  but  are  special  damages;  Daugherty  v.  Thomas,  174 
Mich.  384,  386,  Ann.  Oas.  1915A,  1163,  45  L.  R.  A.  (N.  S.)  699,  140  N.  W. 
620,  621,  statute  making  owner  of  motor  vehicle  liable  for  injury  caused 
by  negligent  operation  by  any  person  is  not  valid  exercise  of  police  power, 
but  invasion  of  property  rights  of  owner;  St.  Louis  Gunning  Advertise- 
ment Co.  V.  St.  Louis,  235  Mo.  157,  137  S.  W.  946,  municipal  ordinance 
regulating  billboards  is  not  an  unreasonable  exercise  of  police  pdwer ;  State 
V.  Layton,  160  Mo.  489,  61  S.  W.  174,  holding  act  prohibiting  sale  of  alum 
baking  powders  within  police  power;  Booth  v.  McGuinness,  78  N.  J.  L. 
370,  75  Atl.  461,  general  law  providing  for  regulation  of  municipal  affairs 


147  MARBURY  v.  MADISON.  1  Cr.  137-180 

by  commission  not  invalid  as  interference  with  local  self-government;  Tor- 
rez  V.  County  Comma's.,  10  N.  M.  689,  65  Pac.  181,  holding  chapter  34, 
Laws  1899,  void;  Schieffelin  v.  Komfort,  212  N.  Y.  630,  L.  R.  A.  1915D, 
485,  106  N.  E.  678,  taxpayer  cannot  test  constitutionality  of  statute,  pro- 
viding for  constitutional  convention,  in  injunction  suit  against  State  offi- 
cers to  prevent  election  of  delegates,  where  no  interference  with  his  rights 
apart  from  those  of  general  public  are  shown;  Board  of  Education  v. 
Henderson,  126  N.  C.  698,  36  S.  E.  161,  holding  void  Laws  1899,  chapter 
128,  §  2,  relative  to  actions  against  towns  for  penalties ;  Mott  v.  Commis- 
sioners, 126  N.  C.  868,  36  S.  E.  331,  holding  void  Acts  1899,  chapter  371, 
infringing  on  criminal  jurisdiction  of  Superior  Courts;  White  v.  Auditor, 
126  N.  C.  582,  583,  594,  36  S.  E.  135,  139,  holding  mandamus  lies  to  com- 
pel auditor  to  issue  warrant  for  oyi^ter  inspector's  salary;  Wilson  v.  Jor- 
dan, 124  N.  C.  722,  33  S.  E.  148,  holding  legislature  cannot  deprive  officer 
of  his  office  while  office  still  exists;  State  v.  Miller,  87  Ohio  St.  26,  Ann. 
Gas.  1913E,  761,  44  L.  R.  A.  (N.  S.)  712,  99  N.  E.  1079,  act  provid- 
ing for  election  of  judicial  offiTcers  by  separate  ballot  is  valid  exercise  of 
legislative  power;  Cincinnati  v.  Trustees  of  Hospital,  66  Ohio  St.  452, 
64  N.  E.  424,  holding  act  of  April  29,  1902,  regulating  Commercial 
Hospital  of  Cincinnati,  is  void  as  special  legislation;  Coyle  v.  Smith,  28 
Okl.  172,  113  Pac.  965,  ''irrevocable  ordinance"  of  enabling  act  pro- 
viding for  location  of  capital  is  no  part  of  fundamental  law,  but  merely 
exercise  of  l^slative  power,  and  may  be  repealed  by  legislature; 
Arie  v.  State,  23  Okl.  172,  1  Okl.  Cr.  256,  673,^  100  Pac.  25,  oA 
adoption  of  constitutional  .  provision  as  to  prohibition/  prior  grant 
of  liquor  license  was  revoked ;  Ex  parte  Crump,  10  Okl.  Cr.  145,  135  Pac. 
433,  pardon  granted  by  lieutenant-governor,  in  absence  of  Governor,  is 
valid  act;  Ellis  v.  Frazier,  38  Or.  464,  63  Pac.  642,  holding  void  tax  on 
bicycles  in  certain  counties  as  special  legislation;  Ex  parte  Flake,  67  Tex. 
Cr.  222,  149  S.  W.  149,  act  taxing  storage  of  intoxicating  or  nonintoxi- 
eating  liquors  in  prohibition  territory  is  valid  exercise  of  police  power 
and  not  infringement  of  private  property  rights;  Ex  parte  Anderson,  46 
Tex.  Cr.  390,  391,  81  S.  W.  981,  982,  city  court  has  no  jurisdiction  to  try 
accused  for  violation  of  State  penal  statute ;  United  States  v.  United  States 
Fidelity  &  Guaranty  Co.,  80  Vt.  95,  66  Atl.  813,  amendatory  act,  provid- 
ing remedy  in  Federal  courts  to  person  suing  in  name  of  United  States  on 
contractor's  bond,  held  not  retrospective  and  did  not  preclude  action  in 
State  court;  State  v.  Howell,  85  Wash.  293,  147  Pac.  1166,  statute  pro- 
tecting special  funds  of  cities  of  first  class  is  emergency  act  under  police 
power,  and  not  subject  ;to  referendum;  State  v.  Meath,  84  Wash.  308, 
147  Pac.  13,  act  changing  membership  of  State  board  of  land  commission- 
ers not  an  emergency  act  exempt  from  referendum;  Herold  v.  McQueen, 
71  W.  Va.  45,  75  S.  E.  314,  act  creating  county  high  school  and  making 
members  of  County  Court  member  of  board  of  directors  with  payment 
per  diem,  not  unconstitutional  as  increasing  salary  of  members  of  court; 
State  V.  Donald,  160  Wis.  139,  140,  151  N.  W.  370,  371,  while  reforesta- 
tion within  police  power  and  legitimate  object  of  State  expense,  legisla- 
ture cannot  divert  lands  impressed  within  educational  trust;  In  re  Bolens, 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  148 

148  Wis.  544,  Ann.  Oas.  191SA,  1147,  L.  R.  A.  1915B,  569,  136  N.  W.  165, 
taxpayer,  as  relator  of  State,  may  enjoin  State  oflBcer  from  disbursing 
public  money  in  enforcement  of  income  tax  law  violating  Constitution; 
Borgnis  v.  Falk  Co.,  147  Wis.  372,  376,  37  L.  R.  A.  (N.  S.)  488.  489,  133 
N.  W.  224,  226,  3  N.  C.  C.  A.  696,  700,  Workmen's  Compensation  Act 
abolishing  defenses  of  assumed  risk  and  fellow-servant  is  not  void  as 
against  public  policy ;  State  v.  Frear,  142  Wis.  360,  20  Ann.  Oas.  633,  125 
N.  W.  976,  primary  election  law  providing  for  referendum  not  unconstitu- 
tional as  delegation  of  power  given  by  Constitution  to  legislature;  Bon- 
nett  V.  Vallier,  136  Wis.  203,  128  Am.  St.  Rep.  1061,  17  L.  R.  A.  (N.  S.) 
486,  116  N.  W.  888,  injunction  granted  to  prevent  officers  from  interfer- 
ing with  construction  of  building  under  law  unreasonably  infringing  pri- 
vate property  rights;  State  v.  Redraon,  134  Was.  103,  107,  126  Am.  St. 
Rep.  1003,  15  Ann.  Gas.  408,  14  L.  R.  A.  (N.  S.)  229,  114  N.  W.  139,  141, 
law  giving  occupant  of  lower  berth  of  sleeping-car  option  to  have  upper 
berth  closed  if  unoccupied,  unreasonable  interference  with  property  rights, 
and  not  within  police  power;  State  v.  Kreutzberg,  114  Wis.  533,  91  Am. 
St.  Rep.  936,  90  N.  W.  1099,  holding  void  act  prohibiting  discharge  of 
anion  workmen;  State  v.  Chittenden,  127  Wis.  519,  521,  107  N.  W.  517, 
518,  construing  dental  act;  dissenting  opinion  in  Lottery  Case,  188  U.  S. 
372,  47  L.  Ed.  507,  23  Sup.  Ct.  333,  majority  upholding  28  Stat.  963,  pro- 
hibiting lotteries;  dissenting  opinion  in  Dooley  v.  United  States,  183  U.  S. 
173,  46  L.  Ed.  187,  21  Sup.  Ct.  762,  majority  upholding  Foraker  law,  taxing 
United  States  imports  into  Porto  Rico;  dissenting  opinion  in  Downes  v. 
Bidwell,  182  U.  S.  358,  359,  381,  45  L.  Ed.  1134,  1142,  21  Sup.  Ct.  814,  815, 
823,  majority  holding  Porto  Rico  not  part  of  United  States  within  taxing 
clause  of  Constitution;  dissenting  .opinion  in  Whaley  v.  State,  168  Ala.  169, 
30  L.  R.  A.  (N.  S.)  499,  52  South.  946,  majority  holding  that  act,  authoriz- 
ing street-car  companies  to  make  rules  regulating  transfers,  and  making 
fraudulent  or  willful  violations  of  rules  unlawful,  was  valid;  dissenting 
opinion  in  State  v.  Moore,  76  Ark.  ^06,  88  S.  W.  884,  majority  upholding 
State  guard  appropriation  act  of  1905 ;  dissenting  opinion  in  United  States 
v.  O'Neal,  10  App.  D.  C.  248,  majority  holding  that  act  of  Congress,  pro- 
viding no  appeal  should  lie  from  decision  of  justice  of  peace  tried  by  jury, 
was  valid ;  dissenting  opinion  in  Admiral  Realty  Co.  v.  City  of  New  York, 
206  N.  Y.  160,  Ann.  Oas.  1914A,  1054,  99  N.  E.  257,  majority  holding  con- 
tract, between  city  and  private  corporation  for  joint  operation  of  subways 
and  preferential  payment  to  corporation,  not  infringement  of  constitutional 
prohibition  to  give  money  in  aid  of  corporation;  dissenting  opinion  in 
Citizens'  Sav.  Bank  v.  Greenburgh,  173  N.  Y.  232,  65  N.  E.  983,  majority 
upholding  Laws  1892,  chapter  493,  relating  to  establishment  of  highways; 
dissenting  opinion  in  State  v.  Armour  &  Co.,  27  N.  D.  211,  212,  213,  145 
N.  W.  1046,  1047,  majority  holding  regulations  of  weights,  measures  and 
labels  of  foods  sold  within  State  was  not  unreasonable  exercise  of  police 
power  or  interference  with  interstate  commerce;  dissenting  opinion  in 
Coyle  V.  Smith,  28  Okl.  182,  113  Pac.  969,  majority  holding  that  **  irrev- 
ocable ordinance"  of  enabling  act,  determining  temporary  location  of 
capital,  and  providing  for  location  of  permanent  capital  by  electors,  was 


149  MARBURY  v.  MADISON.  1  Cr.437-180 

law  which  legislattlre  could  repeal;,  dissenting  opinion  in  Ex  parte  Town- 
send,  64  Tex.  Cr.  377,  378,  144  S.  W.  643,  act  prohibiting  occupation  of 
selling  intoxicating  liquors  and  requiring  license  for  sale  of  nonintoxicating 
malt  liquors  within  p>olice  power  of  State;  dissenting  opinion  in  State  v. 
Clausen,  85  Wash.  276,  Ann.  Gas.  1916B,  810,  148  Pac.  34,  majqrity  holding 
that  legislature  had  power  of  withholding  referendum  of  State  highway 
appropriation  act  under  State  Constitution,  and  mandamus  will  issue  com- 
pelHni?  auditor  to  pay  claims;  dissenting  opinion  in  State  v.  Marcus,  160 
Wis.  408,  152  N.  W.  439,  majority  holding  that  constitutional  amendment 
l^^y  adopted,  though  legislative  proposal  in  final  form  not  entered  at 
large  on  journals  of  both  houses;  dissenting  opinion  in  In  re  Bolens,  148^ 
Wis.  532,  Ann.  Gas.  1918A,  1147,  L.  B.  A.  1915B,  569,  134  N.  W.  699, 
majority  holding  taxpayer,  as  relator  of  State,  may  enjoin  State  officers 
from  enforcing  income  tax  laws  alleged  unconstitutional;  dissenting 
opinion  in  State  v.  Daniels,  143  Wis.  657,  128  N.  W.  567,  majority  holding 
that  statute,  providing  for  appointment  of  nonresident  commissioners  to 
reassess  taxes  not  levied  in  compliance  with  law  by  local  authorities,  not 
unconstitutional  as  contravention  of  local  rights;  dissenting  opinion  in 
Riley  v.  Chicago  etc.  Ry.  Co.,  138  Wis.  234, 119  N.  W.  317,  majority  holding 
law,  making  common  carrier  liable  for  injury  due  to  negligence  of  co- 
employee  to  secure  safety  of  public,  valid ;  dissenting  opinion  in  Taylor  etc. 
Marshall  y.  Bukham,  178  U.  S.  586,  44  L.  Ed.  1203,  20  Sup.  Ct.  1009, 
arguendo. 

Distinguished  in  Higgins  v.  Tax  Assessors  of  Pawtucket,  27  R.  I.  405, 
63  Atl.  36,  upholding  practice  act  1905,  p.  4,  §  12,  giving  Superior  Cpurt 
jurisdiction  in  cases  of  prerogative  writs. 

We  find  that  the  principal  case  has  also  been  recognized  as  an  authority 
of  considerable  importance,  respecting  the  relations  of  the  judicial  and 
l^slative  d«fartments,  though  an  accurate  delimitation  of  the  scope  of 
legislative  po^fers  would  be  equally,  if  not  more,  difficult  than  in  the  case 
of  the  exectrtfte.  The  principal  case  does  not  attempt  that,  and  its  cita- 
tions do  not,  therefore,  take  us  far  into  the  many  vexed  problems  which 
are  continually  arising  in  this  connection,  v  It  is  certain,  however,  that 
the  principal  case  has  exerted  a  very  marked  influence  in  establishing  the 
equality  of  the  judicial  with  the  other  departments,  and  in  settling  many 
important  points  respecting  the  relations  between  the  department  which 
declares  what  the  law  is  and  the  department  which  declares  what  the  law 
is  to  be.  It  is  difficult  to  carry  one's  self  back  to  a  time  when  the  power 
of  the  court  to  examine  into  the  validity  of  a  legislative  appointment 
because  an  exercise  of  political  power  was  denied  (State  ex  rel.  v.  Paul, 
6  Stew.  &  P.  40,  51;  overruled  in  State  ex  rel.  v.  Porter,  1  Ala.  688,  704) , 
and  its  power  to  question  or  annul  legislation  because  in  conflict  with  the 
organic  la\fr,  controverted  with  zeal  and  argument  by  those  opposed  to  the 
exercise  of  so  dangerous  a  function.  But  it  is  only  by  doing  so  that  we 
can  estinlate  the  progress  that  has  been  made  toward  a  complete  adjust- 
ment of  the  relations  between  the  co-ordinate  branches  of  the  government, 
and  the  place  of  the  principal  case  in  the  development  of  this  distinctive 
feature  of  American  law.    In  finally  settling  the  principle  that  it  is  not 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  ibo 

only  the  right,  but  the  duty  of  the  judiciary  to  pass  upon  the  constitu- 
tionality of  legislative  enactments  and  declare  them  void  if  in  conflict  with 
the  fundamental  law,  the  principal  case  performed  a  service  which  has 
called  forth  exalted  eulogies  from  later  jurists. 

It  cahnot  be  claimed  for  the  principal  case,  that  it  is  the  first  case  in 
this  country  in  which  this  point  was  involved  and  adjudicated  in  favor  of 
the  authority  of  the  judiciary.  Judge  Dillon,  in  his  lectures  on  Laws  and 
Jurisprudence,  has  collected  the  early  cases  on  this  point,  and  finds  Holmes 
V.  Walton,  referred  to  in  State  v.  Parkhurst,  4  Halst.  (N.  J.)  444,  decided 
by  the  Supreme  Court  of  New  Jersey,  in  1780,  to  be  the  first  case  on  the 
« question.  Other  early  cases  are  Conmion wealth  v.  Caton,  4  Call  (Va.),  5 
(1782) ,  "Case  of  the  Judges,"  Id.  135  (1788) ,  Kamper  v.  Hawkins,  1  Va. 
Cas.  20,  Bowman  v.  Middleton,  1  Bay  (S.  C),  262,  Trevett  v.  Weeden 
(decided  by  the  Superior  Court  of  Rhode  Island  in  1786;  see  Cooley's 
Const.  Lim.,  6th  ed.,  p.  193,  n.) ,  Bayard  v.  Singleton,  1  Mart.  (N.  C.)  48, 
Ogden  V.  Witherspoon,  2  Hay w.  227 ,  see,  also,  In  re  Davis,  58  Kan.  385,  49 
Pac.  165. 

All  these  cases,  however,  seem  important,  historically  rather  than  legally. 
There  is  nothing  to  indicate  that  they,  or  any  of  them,  were  considered 
as  settling  the  question,  while  it  is  undeniable  that  the  courts  have  always 
accorded  this  distinction  to  the  principal  case.  "Since  the  case  of  Mar- 
bury  V.  Madison,  1  Cr.  137,"  said  the  Supreme  Court  of  Missouri,  in  1822, 
"this  question  has  been  generally  looked  upon  as  settled."  Baily  v.  Gentry, 
1  Mo.  167,  13  Am.  Dec.  485.  The  Supreme  Court  of  New  Jersey  has  ob- 
served: "The  question  is  elaborately  discussed  in  the  Federalist,  and  it 
was'  not  set  at  rest  until  it  received  the  lucid  exiK>sition  of  the  greaf  mind 
of  Chief  Justice  Marshall,  in  Marbury  v.  Madison."  Moore  v.  State,  43 
N.  J.  L.  244,  39  Am.  Bep.  668 ;  and  see  Van  Horn  v.  State,  46  Neb.  82,  64 
N.  W.  372.  A  decision  contemporary  with  Marbury  v.  Madison,  and  hold* 
ing  that  the  courts  have  power  to  declare  void  an  unconstitutional  statute, 
was  Emerick  v.  Harris,  decided  by  the  Supreme  Court  of  Pennsylvania,  in 
1808.  Yeates,  J.,  in  his  opinion  remarked  that  it  had  been  drawn  up 
previous  to  the  publication  of  the  decision  by  the  Federal  Supreme  Court. 
1  Binn.  423. 

While  there  would  seem  to  be  no  case  in  the  reports  holding  to  the  con- 
trary of  Marbury  v.  Madison,  it  would  be  a  mistake  to  suppose  that  all 
argument  on  the  question  was  immediately  silenced  by  that  decision.  As 
late  as  1825,  Judge  (afterward  Chief  Justice)  Gibson  of  Pennsylvania 
characterized  the  reasoning  and  opinion  of  Chief  Justice  Marshall  as 
''inconclusive";  and  while  conceding  the  right  to  declare  void  laws  in  con- 
flict with  the  Federal  Constitution,  he  was  for  denying  the  right  to  avoid 
Icofislation,  in  conflict  with  the  Constitution  of  a  State.  Eakin  v.  Raub, 
12  Serg.  &  R.  346. 

The  principle  is  so  clearly  and  so  firmly  settled,  and  is  now  so  elementary 
in  our  law,  that  it  is  entirely  unnecessary  to  prolong  this  discussion.  Cer- 
tainly no  court  to-day  can  feel  it  necessary  to  append  authority  to  so 
axiomatic  a  statement;  and  it  is  noteworthy  that  the  Supreme  Court  cites 
it  to  this  point  but  once  (Pollock  v.  F.  L.  &  T.  Co.,  157  U.  S.  554,  39  L.  EcL 


151  MARBURY  v.  MADISON.  1  Cr.  137-180 

810»  15  Sup.  Ct.  679)  in  its  subsequent  decisions  annulling  laws,  either 
State  or  Federal.  Bonaparte  v.  Camden  &  A.  R.  R.,  Bald.  219,  Fed.  Cas. 
1617;  In  re  Bogart,  2  Sawy.  406,  Fed.  Cas.  1596;  Dale  v.  Governor,  3 
Stew.  418;  Demott  v.  Swaim,  5  Stew.  &  P.  308;  Fulmore  v.  Brady,  44  Ala. 
223 ;  Noble  v.  Cullom,  44  Ala.  560 ;  Ex  parte  Selma  etc.  R.  Co.,  45  Ala.  728, 
6  Am.  Bep.  727;  Rison  v.  Farr,  24  Ark.  168,  87  Am.  Dec.  56;  Caultield  v. 
Hudson,  3  Cal.  390;  Nongues  ▼.  Douglass,  7  Cal.  80;  Dawson  v.  Shaver,  1 
Blackf.  207;  Beebe  v.  State,  6  Ind.  508;  Seymour  ¥.  State,  51  Ala.  53; 
Robinson  v.  Schenck,  102  Ind.  319,  1  N.  E.  705;  Reed  v.  Wright,  2  G. 
Greene,  30;  Koehler  v.  Hill,  60  Iowa,  656,  15  N.  W.  635;  Crescent  City 
etc.  Co.  V.  New  Orleans  etc.  Co.,  27  La.  Ann.  143,  146;  Louisiana  Ice  Co. 
V.  State  Nat.  Bank,  32  La.  Ann.  597,  598 ;  Anderson  v.  Baker,  23  Md.  563 ; 
Baily  v.  Gentry,  1  Mo.  167,  13  Am.  Dec.  485;  State  v.  Fray,  4  Mo.  178; 
Wilcox  V.  Saunders,  4  Neb.  579 ;  Merrill  v.  Sherburne,  1  N.  H.  202,  8  Am. 
Dec  55;  Moore  v.  State,  43  N.  J.  L.  244,  39  Am.  Bep.  558;  Griffith  v. 
Commissioners  etc.,  20  Ohio  App.  5;  Cincinnati  etc.  R.  R.  v.  Commis- 
sioners, 1  Ohio  St.  82;  Eakin  v.  Raub^  12  Serg.  &  R.  330;  Lonas  v.  State, 
3  Heisk.  301;  Lewis  v.  Woodfolk,  2  Baxt.  47;  Stockton  v.  Montgomery, 
Dall.  (Tex.)  480,  485;  Ex  parte  Rodriguez,  39  Tex.  757;  Wise  v.  Bigger, 
79  Va.  269,  273 ;  State  v.  Auditor,  47  La.  Ann.  1694,  18  South.  751 ;  In  re 
Davis,  58  Kan.  385,  49  Pac.  165 ;  In  re  Klein,  14  Fed.  Cas.  719 ;  Magill  y. 
Brown,  16  Fed.  Cas.  419. 

The  principal  case  is  also  cited  in  several  cases  as  one  of  the  three  in- 
stances in  which  acts  of  Congress  have  been  declared  void  by  the  Supreme 
Court,  the  others  being  Dred  Scott  v.  Sandford,  19  How.  393,  15  L.  Ed. 
€91,  and  Ex  parte  Garland,  4  Wall.  333,  18  L.  Ed.  866;  United  States  v. 
Rhodes,  1  Abb.  (U.  S.)  28,  52,  Fed.  Cas.  16,151;  Seymour  v.  State,  51  Ala. 
63;  In  re  Bogart,  2  Sawy.  406,  Fed.  Cas.  1596.  Before  the  court  will 
declare  a  statute  void,  it  must  clearly  appear  that  it  is  incompatible  with 
the  oiganic  law.  Simpson  v.  Savings  Bank,  56  N.  H.  469,  2i2  Am.  Bep. 
493. 

Aside  from  the  foregoing,  the  citations  afford  us  further  illustrations 
of  the  extent  to  which  the  judiciary  deem  it  their  right  to  go  in  an  exam- 
ination of  acts  of  the  legislative  department.  These  citations  are  based 
in  part  upon  specific  expressions  in  the  opinion  in  the  leading  case,  but 
many  of  them  rather  reflect  the  general  tone  of  firmness  which  character- 
izes the  principal  case  in  its  assertion  of  the  rights  of  the  judiciary.  Thus 
we  find  that  courts  have  quoted  the  words:  "To  what  purpose  are  powers 
limited,  and  to  what  purpose  is  that  limitation  committed  to  writing,  if 
these  limits  may  at  any  time  be  passed  by  those  intended  to  be  restrained  V 
And  they  have  held  that  although  the  legislature  may  have  expressly,  de- 
clared that  a  certain  statute  is  passed  for  the  benefit  of  the  public  health 
and  morals,  this  does  not  avail  to  preclude  an  inquiry  as  to  whether  it  be 
such  in  fact.  Mugler  v.  Kansas,  123  U.  S.  661,  31  L.  Ed.  210,  8  Sup.  Ct. 
297;  McCullough  v.  Brown,  41  S.  C.  243,  19  S.  E.  471.  The  fact  that  a 
statute  is  intended  as  an  exercise  of  the  police  power  does  hot  preclude 
a  judicial  inquiry  as  to  whether  it  be  a  valid  exercise  of  that  power. 
McCullough  V.  Brown,  41  S.  C.  243,  19  S.  E.  471 ;  In  re  Jacobs,  98  N.  Y. 


1  Cr.  137-180  NOTES  ON  U.  S.  REPORTS.  162 

112,  50  Am.  Bep.  645.  So,  also,  a  statute  making  certain  acta  a  criminal 
misdemeanor,  is  not  therefore  conclusively  a  valid  exercise  of  the  police 
power.  Ah  Lim  v.  Territory,  1  Wash.  178,  24  Pac.  594.  In  other  words, 
it  is  immaterial  what  may  have  been  the  opinion  of  the  legislature  as  to 
the  extent  of  its  powers  under  the  Constitution,  so  long  as  it  does,  in  fact, 
exceed  them.  Maize  v.  State,  4  Ind.  346.  On  the  other  hand,  the  judiciary 
has  no  power  to  question  legislation  on  any  other  than  constitutional 
grounds.    Ex  parte  Screws,  49  Ala.  66. 

There  are,  also,  other  portions  of  the  opinion  whose  general  tenor  is 
the  same.  In  the  terse  saying  that  ours  is  a  "government  of  laws  and  not 
of  men,"  Chief  Justice  Marshall  epitomizes  what  is  now  very  firmly  estab- 
lished as  the  attitude  of  the  courts  upon  the  difficult  questions  of  con- 
stitutional law.  In  the  leading  case  this  assertion  was  followed  by  a  clear 
statement  of  the  proposition  that  executive  officers  are  not  beyond  the 
control  of  the  courts  of  law,  simply  because  part  of  a  co-ordinate  depart- 
ment of  the  government.  "The  truth  is,"  says  Mr.  Justice  Field,  in  an 
early  California  case,  "no  officer,  however  high,  is  above  the  law."  McCau- 
ley  V.  Brooks,  16  Cal.  41.  The  citations  above,  especially  those  upon 
the  subject  of  mandamus,  and  the  right  to  declare  void  unconstitutional 
statutes,  show  how  steadily  the  courts  have  adhered  to  'this  principle. 
Other  cases  also  quote  these  "impressive  and  weighty  words"  of  the  great 
chief  justice.  Poindexter  v.  Greenhow,  114  U.  S.  298,  29  L.  Ed.  195,  6 
Sup.  Ct.  918 ;  Louisiana  v.  Jumel,  107  U.  S.  743,  27  L.  Ed.  459,  2  Sup.  Ct. 
154;  Standeford  v.  Wingate,  2  Duv.  (Ky.)  457;  People  ex  rel.  v.  Governor, 
29  Mich.  327, 18  Am.  Rep.  95. 

While  the  principal  case  affirmed  the  power  of  the  courts  in  certain  of 
its  relations  with  the  legislative  department,  on  the  other  hand  it  dis- 
claimed any  pretensions  to  control  any  of  those  acts  in  which  the  discre- 
tion and  power  of  the  legislature  was  exclusive.  We  have  seen  above,  that 
the  court  recognized  certain  executive  acts  as  discretionary,  or  political 
in  character,  and  others  as  properly  reviewable  in  the  courts,  and  that  sub- 
sequent cases  have  followed  this  doctrine  in  their  rulings.  The  citations 
also  disclose  a  few  cases  in  which  similar  questions  have  arisen,  respect- 
ing legislative  acts  which  were  claimed  to  be  beyond  the  control  of  the 
courts.  Here,  also,  we  may  note  that  the  influence  of  the  principal  case 
has  been  to  encourage  a  vigorous  assertion  of  judicial  power.  In  an  early 
Alabama  case  the  court  decided  that  it  had  no  power  to  review  a  legis- 
lative appointment  of  a  judicial  officer,  and  quoted  Chief  Justice  Mar- 
shall's words  in  the  leading  case,  disclaiming  all  desire  to  interfere  in 
political  questions.  State  ex  rel.  v.  Paul,  5  Stew.  &  P.  51.  But  this  deci- 
sion was  speedily  overturned  and  the  contraiy  doctrine  established,  the 
principal  case  being  again  cited,  this  time  as  illustrating  the  extent  and 
variety  of  the  questions  into  which  the  courts  may  inquire.  State  ex  rel. 
V.  Porter,  1  Ala.  704.  This  latter  citation  more  accurately  indicates  the 
general  tendency  noticeable  in  the  other  citations  on  this  point.  Thus  the 
dissenting  judges  in  an  Indiana  case  of  more  recent  date  cite  Marbury  v. 
Madison  to  the  point  that  the  validity  of  an  appointment  is  essentially  a 
judicial  question,  although  it  was  then  held  that  the  court  could  not  inter- 


163  MABBUBY  v.  MADISON.  1  Cr.  137-180 

fere  to  try  the  title  to  the  office  of  lieutenant-govemory  that  power  hav- 
ing been  conferred  by  the  Constitution  on  the  general  assembly.  Robert- 
son V.  State,  109  Ind.  90,  10  N.  E.  582.  Again,  it  has  been  vigorously 
maintained  that  legislative  enactments  apportioning  the  State  into  dis- 
tricts for  electoral  purposes  were  not  subject  to  review,  respecting  the  pro- 
priety of  these  apportionments.  But  these  acts  have  in  several  instances 
been  declared  inconsistent  with  some  constitutional  prevision;  and  in  two 
cases  the  analogy  of  Marbury  v.  Madison  has  been  relied  upon  in  assert- 
ing that  a  judicial  question  was  involved  in  such  legislation.  Parker  v. 
State  ex  rel.,  133  Ind.  185,  32  N.  E.  838 ;  State  ex  rel.  v.  Cunningham,  83 
Wis.  136,  85  Am.  St.  Bep.  44,  53  N.  W.  53.  So,  also,  in  deciding  which  of 
two  contestants  is  the  duly  elected  Speaker  of  a  legislative  assembly,  the 
eourt  is  dealing  with  a  proper  judicial  question,  although  it  be  necessary 
in  so  doing  to  pass  upon  the  credentials  of  the  members  of  the  house.  In 
re  Gunn,  50  Kan.  265,  32  Pac.  967. 

It  remains  to  note  under  this  head  that  in  the  leading  case  attention  is 
called  to  the  attempt  of  Congress  to  impose  certain  duties  as  pension  com- 
missioners on  *the  Federal  judges,  and  the  refusal  of  the  judges  so  to  act. 
The  principal  case  is  cited  to  this  point  in  a  Dakota  case,  which  decided 
that  the  only  questions  which  might  be  brought  before  the  Supreme  Court 
upon  certiorari  to  a  county  board  of  commissioners  were  judicial  and  not 
political  or  executive  questions.  Champion  v.  Commissioners,  5  Dak.  Ter. 
429,  41  N.  W.  742 ;  Territory  v.  Cox,  6  Dak.  Ter.  505. 

Unconstitutionality  of  statute  as  defense  against  mandamus  to  compel 
enforcement.    Note,  47  L.  B.  A.  512. 

Miscellaneous.  A  few  citations  do  not  belong  under* any  of  the  fore- 
going heads,  and  serve  little  more  than  to  illustrate  the  great  number  of 
I)oints  to  which  the  leading  case  has  been  cited.  Three  of  them,  decide^ 
in  the  Supreme  Court  of  Indiana,  "follow  the  precedent  set  by  tHe  Supreme 
Court  of  the  United  States  in  Marbury  v.  Madison,"  in  discussinp:  the 
case  at  bar  on  its  merits,  although  it  was  possible  to  dispense  with  it 
temporarily  upon  a  technicality.  Beal  v.  Ray,  17  Ind.  559;  State  ex  rel. 
.V.  Allen,  21  Ind.  516,  520,  83  Am.  Dec.  367,  369;  Robertson  v.  State,  109 
Ind.  90,  99,  10  N.  E.  582,  592.  In  several  others  the  citation  occurs  in  a 
quotation  from  Cohens  v.  Virginia  on  the  subject  of  dictum,  where  the 
court  was  making  a  similar  effort  to  get  away  from  a  questionable  doc- 
trine. Leisy  v.  Hardin,  135  U.  S.  135,  84  L.  Ed.  141,  10  Sup.  Ct.  693; 
State  ex  rel.  v.  Doyle,  40  Wis.  190,  22  Am.  Rep.  695 ;  Ex  parte  Young  Ah 
Gow,  73  Cal.  449,  15  Pac.  81;  Cooper  v.  Freeman  L.  Co.,  61  Ark.  44,  32 
S.  W.  494 ;  Carroll  v.  Carroll,  16  How.  287,  14  L.  Ed.  941 ;  Matz  v.  Chicago 
&  A.  R.  R.  Co.,  85  Fed.  183.  Two  others,  decided  in  the  Supreme  Court 
of  Louisiana,  cite  the  leading  case  to  the  point  that  where  a  right  is  clearly 
established  and  no  remedy  at  law,  one  was  to  be  found  in  equity;  Crescent 
City  etc.  Co.  v.  New  Orleans  etc.  Co.,  27  La.  Ann.  143,  146;  State  ex  rel. 
V.  Dubuclet,  28  La.  Ann,  708.  Still  others  cite  it  to  the  point  that  the 
courts  are  bound  to  take  judicial  notice  of  the  statutes,  enacted  by  the 
legislative  department.  State  v.  Coosaw  Min.  Co.,  45  Fed.  809;  Turner's 
Adm.  V.  Patton,  49  Ala.  411. 


1  Cr.  181-194  NOTES  ON  U.  S.  REPORTS.  154 

The  remaining  citations  all  differ  one  from  another.  One  is  that  that' 
c6nstruction  of  a  Constitution  is  to  be  favored  which  makes  all  parts 
operative.  Ex  parte  Lusk,  82  Ala.  525,  2  South.  144.  Another  that  the 
granting  of  divorces  by  parliament,  in  England  is  an  exercise  of  a  judi- 
cial power.  State  v.  Fry,  4  Mo.  144.  A  third,  that  in  cases  arising  under 
Federal  law,  the  State  courts  cannot  allow  a  defense  which  ^e  Federal 
courts  have  not  allowed.  Hall  v.  Hall,  43  Ala.  503,  94  Am.  Dec.  713,  2 
South.  144.  The  Supreme  Court  of  Massachusetts  makes  Marbury  v. 
Madison  authority  for  the  statement  that  the  act  of  the  legislature  sub- 
stituting a  bridge  franchise  for  the  ferry  franchise  of  Harvard  College 
was,  undoubtedly,  a  taking  of  private  property,  but  that  compensation 
has  been  made  and  its  adequacy  has  not  been  questioned.  Charles  River 
Bridge  v.  Warren  Bridge,  7  Pick.  452.  It  is  also  cited  to  the  point  that 
the  Federal  Constitution  had  not  been  lavish  in  endowing  even  the  Federal 
court  with  jurisdiction  in  national  matters,  in  holding  that  a  State  court 
had  no  jurisdiction  to  try  the  title  to  the  office  of  director  of  a  national 
bank.  State  ex  rel.  v.  Curtis,  35  Conn.  382,  95  Am.  Dec.  268.  In  declar- 
ing void  a  portion  of  the  judiciary  act  of  1789,  the  Supreme  Court  of 
Virginia  remarked  that  the  Federal  court  hadjtself  found  the  act  invalid 
in  another  respect.  Hunter  v.  Martin,  4  Munf.  28.  Another  citation  of 
Marbury  v.  Madisoii  is  appended  to  the  statement  that  upon  the  approval 
of  an  act  of  Congress  by  the  president,  it  becomes  law.  American  etc.  Co. 
V.  Glens  Falls  etc.  Co.,  4  Fish.  Pat.  561,  566,  Fed.  Cas.  321a.  Another  to 
the  statement  that  when  the  powers  of  one  department  are  granted  to 
another,  such  grant  must  be  strictly  construed.  Robertson  v.  State,  109 
Ind.  94, 10  N.  E.  589.  In  an  early  New  York  case,  it  is  cited  to  the  point 
that  a  public  officer  is  not  personally  liable  for  public  debts  incurred  by 
him  officially.  Osborne  v.  Kerr,  12  Wend.  180.  Marburv-  v.  Madison  is 
ipcluded  in  a  numerous  list  of  authorities  cited  in  a  Federal  case  to  sus- 
tain the  proposition  that  a  witness  will  not  be  compelled  to  answer  a  ques- 
tion tending  to  disgrace  him.  United  States  v.  White,  5  Cr.  C.  C.  459,  Fed. 
Cas.  16,679.  And  finally  the  Supreme  Court  of  Georgia  cites  it  in  declar- 
ing that  the  laws  of  the  State  were  made  up  as  follows  and  in  the  follow- 
ing order:  (1)  Constitution  of  the  United  States,  (2)  treaties,  (3)  acts  of. 
Congress,  (4)  State  Constitution,  (5)  State  statutes,  (6)  common  law  of 
England.  Flint  River  etc.  Co.  v.  Foster,  5  Ga.  205,  48  Am.  Dec.  257,  and 
in  Averill  v.  Tucker,  2  Cr.  C.  C.  545,  Fed.  Cas.  670,  on  question  of  liability 
of  public  agent.  Lockhard  v.  Asher  Lumber  Co.,  123  Fed.  501,  Southern 
Ry.  Co.  V.  St.  Clair  Co.,  124  Ala.  504.  27  South.  29,  Barber  etc.  Co.  v. 
French,  158  Mo.  639,  540,  58  S.  W.  936,  Brown  v.  Chicago  etc.  R.  Co.,  102 
Wis.  154,  78  N.  W,  772,  Griffin  v.  Woolford,  100  Va.  477,  41  S.  E.  950,  as 
to  dicta. 

1  Cr.  181-194,  2  L.  Ed.  74,  OLABK  v.  YOXTNO. 

The  giving  of  note  for  antecedent  debt  is  oondltlonal  payment  merely. 
Approved  in  Dille  v.  White,  132  Iowa,  334,  347,  10  L.  R.  A.  (N.  S.)  510, 
109  N.  W.  912,  916,  giving  draft  or  cashier's  check  by  insolvent  bank  in 
lieu  of  money  borrowed  does  not  constitute  payment;  Patapsco  Ins.  Co.  v. 


155  CLARK  V.  YOUNG.  1  Cr.  181-194 

Smith,  6  Ear.  &  J.  170,  14  Am.  Dec.  269,  Griffith  v.  Grogan,  12  Cal.  322, 
Merrick  v.  Bowry,  4  Ohio  St.  66,  Wade  v.  Staunton,  5  How.  (Miss.)  635, 
Knox  V.  Gerhauser,  3  Mont.  278,  all  following  rule;  Wright  v.  First  etc. 
€k>.,  1  N.  H.  282,  8  Am.  Dec.  69,  remarking  farther  that  if  creditor  trans- 
fers note  it  becomes  absolute  payment;  Lover  v.  Bessenger,  9  Baxt.  396, 
holding  note  not  payment  unless  such  was  intended;  Austin  v.  Curtis,  31 
Vt.  73,  holding  indorser  on  overdue  note  not  discharged  by  taking  new 
note  as  collateral ;  dissenting  opinion  in  Winship  v.  Bank  of  United  States, 

5  Pet.  568,  8  L.  Ed.  230,  arguendo. 

Distinguished  in  Harris  v.  Johnston,  3  Cr.  319,  2  L.  Ed.  453,  holding 
that  where  note  is  negotiated  by  creditor,  this  extinguishes  original  debt ; 
Roach  V.  HuUings,  16  Pet.  326,  10  L.  Ed.  981,  as  inapplicable  to  case  re- 
specting presumption  of  payment  from  nonproduction  of  note;  The  Betsy 

6  Rhoda,  2  Ware  (Davies),  115,  Fed.  Cas.  1366,  noting  that  Maine  rule 
makes  such  note  prima  facie  pajrment;  Smith  v.  Bettger,  68  Ind.  258,  34 
Am.  Bep.  258,  remarking  conflict  among  authorities  and  holding  that 
Indiana  rale  is  contra. 

Payment  by  commercial  paper.    Note,  85  L.  B.  A.  (N.  S.)  18. 

Necessity  for  diligence  where  note  is  given  ae  conditional  payment  of 
aatecedeat  delrt. 

Approved  in  Russell  v.  Hester,  10  Ala.  536,  failure  of  creditor  to  pre- 
serve liability  of  indorser  on  such  note  made  him  liable  in  damages  to 
debtor  for  full  amount  of  note;  Weston  v.  Reading,  5  Conn.  270,  creditor 
liable  for  loss  from  delay  in  enforcing  such  note;  Hanna  v.  Pegg,  1  Blackf. 
184,  Hoffman  v.  Johnson,  1  Bland  Ch.  107;  Watkins  v.  Wopthington,'  2 
Bland  Ch.  541 ,  Cochran  v.  Wheeler,  7  N.  H.  205,  26  Am.  Dec.  784 ,  Tobey 
V.  Barber,  5  Johns.  73,  Whitin  v.  Paul.  13  R.  I.  44,  Ringgold  v.  Newkirk, 
3  Ark.  109 ,  Pope  v.  Nance,  1  Stew.  370, 18  Am.  Dec.  63,  discussing  rationale 
of  rule;  Trotter  v.  Crockett,  2  Port.  409,  Chilton  v.  Comstock,  4  Ala.  59, 
and  Cocke  v.  Chaney,  14  Ala.  66,  all  discussing  rule  and  duties  of  cred- 
itor respecting  note  in  order  to  preserve  the  liability  of  the  original  debt : 
Kephart  v.  Butcher,  17  Iowa,  24fl,  holding  that  true  test  is  whether  in 
respect  to  note  creditor  has  been  guilty  of  any  omissions  actually  injuring 
debtor;  Watkins  v.  Worthington,  2  Bland  Ch.  527,  arguendo. 

Distinguished  in  Stocking  v.  Conway,  1  Port.  262,  holding  that  even 
where  maker  of  note  is  insolvent,  demand  and  every  effort  to  collect  must 
be  made. 

Judgment  in  favor  of  defendant  Indorser  on  technical  grounds  not  bar  to 
flolt  againet  same  defendant  on  original  contract  for  which  note  given. 

Approved  in  Davenport  v.  Chicago  etc.  R.  R.,  38  Iowa,  640,  holding  judg- 
ment in  suit  for  one  yearns  taxes  not  a  bar  to  similar  suit  for  taxes  of  an- 
other ;  Embden  v.  Lishemess,  89  Me.  579,  66  Am.  St.  Bep.  444,  36  Atl.  1102, 
judgment  to  be  a  bar  must  have  been  on  same  subject  matter  and  on  the 
merits,  and  holding  judgment  in  one  tax  suit  not  on  merits  and  so  not  a 
bar  to  second. 

Release  of  indorser  of  note  by  failure  to  enforce  liability  of  maker. 
Note,  18  L.  B.  A.  (N.  S.)  657. 


I  Cr.  194^239  .     NOTES  ON  U.  S.  REPORTS.  156 

Surrender  of  negotiable  paper  as  condition  to  recovery  on  or^nal 
obligation.    Note,  20  Ann.  Oas.  857. 

1  Or.  194-211,  2  li.  Ed.  79,  WILSON  v.  I.ENOZ 

Declaration  in  debt  slLonld  state  amount  with  certainty. 

Followed  and  applied  under  similar  Kentucky  statute  in  similar  actions. 
Johnson  v.  Bank^  6  T.  B.  Mon.  120 ;  Pendleton  v.  Bank,  2  J.  J.  Marsh.  149. 
Cited  in  Musson  v.  Lake,  4  How.  282,  11  L.  Ed.  975,  and  Dunbar  v.  Breese, 
1  Pinn.  Ill,  but  not  in  point;  Dallyn  v.  Brady,  205  Fed.  431,  in  action 
on  bill  of  exchange^  protest  fees  part  of  debt  so  as  to  give  Federal  court 
jurisdiction. 

1  Or.  212-214,  2  L.  Ed.  85,  OX.ABKE  V.  BAZADONE. 

Writ  of  error  fronk  Snpreme  Court  to  general  court  of  Northwest  Territory 
not  authorized  by  act  of  Oongrefis. 

Cited  in  dissenting  opinion  in  United  States  v.  Circuit  Judges,  3  Wall. 
677,  18  L.  Ed.  113,  arguing  against  the  holding  of  majority  that  appeal  lay 
from  Circuit  Court  in  certain  case,  although  not  specially  authorized  by 
Congress;  dissenting  opinion  in  Tennessee  v,  Davis,  100  U.  S.  290,  25 
L.  Ed.  659,  and  Warner  v.  Steamer  Uncle  Sam,  9  Cal.  736,  declaring  that 
appellate  jurisdiction  of  Supreme  Court  is  restricted  to  cases  authorized 
by  Congress;  United  States  v.  New  Bedford  Bridge,  1  Wood.  &  M.  435, 
Fed.  Cas.  15,867,  declaring  that  Congress  and  the  Constitution  must  both 
unite  to  give  Federal  courts  jurisdiction ;  Dismukes  v.  Stokes,  41  Miss.  435, 
dismissing  ^appeal  not  authorized  by  statute;  Robinson  v.  BaiUieul,  2  Tex. 
161,  holding  no  appeal  from  interlocutory  judgment  until  authorized  by 
legislature;  Yarbrough  v.  State,  2  Tex.  527,  holding  no  appeal  lies  from 
order  refusing  bail;  dissenting  opinion  in  Curless  v.  Watson,  180  Ind.  129, 
102  N.  E.  513,  majority  holding  void  repeal  of  act  of  1901  by  act  of  1913, 
cutting  off  right  of  review  in  Supreme  Court  of  certain  cases  decided  in 
appellate  court;  dissenting  opinion  in  Ex  parte  France,  176  Ind.  127,  128, 
95  N.  E.  535,  majority  holding  constitutionality  of  acts  of  1911,  chapter 
117,  defining  jurisdiction  of  Supreme  and  Appellate  Courts  may  be  raised 
tm  petition  .of  clerk  of  Supreme  Court  for  directions  as  to  his  duty. 

Distinguished  in  Curless  v.  Watson,  180  Ind.  90,  94,  102  N.  E.  499,  500, 
holding  void  act  cutting  off  right  of  review  in  Supreme  Court  of  decisions 
of  Appellate  court. 

1  Or.  214-239,  2  L.  Ed.  86,  HOOE  v.  QROVEBMAN. 

Letting  of  tonnage  of  a  vessel  does  not  make  hirer  the  owner  pro  hac  vice. 
In  the  following  cases  it  is  held  that  a  charter-party  is  to  be  construed 
only  as  a  contract  of  affreightment,  and  the  charterer  is  not  owner  for  the 
voyage :  Marcardier  v.  Chesapeake  Ins.  Co.,  8  Cr.  50,  3  L.  Ed.  484,  holding, 
therefore,  that  the  master  who  was  the  owner  could  not  have  committed 
barratry ;  The  Aberf oyle.  Abb.  Adm.  251,  Fed.  Cas.  16 ;  Donahoe  v.  Kettell, 
1  Cliff.  138,  Fed.  Cas.  3980;  Kleine  v.  Catara,  2  Gall.  76,  Fed.  Cas.  7869: 
Eames  v.  Cavaroc,  Newb.  530,  Fed.  Cas.  4238;  The  Volunteer,  1  Sumn. 


157  NOTES  ON  U.  S.  REPORTS.  1  Cr.  239-259 

56S,  Fed.  Gas.  16,991;  The  Nathaniel  Hooper,  3  Snmn.  577,  Fed.  Cas. 
10,032;  Palmer  v.  Gracie,  4  Wash.  C.  C'.  119,  122,  Fed.  Cas.  10,692;  The 
L.  L.  Lamb,  31  Fed.  32 ;  Swift  v.  Tatner,  89  Ga.  668,  32  Am.  St.  Rep.  107, 
15  S.  E.  844;  Slark  v.  Broom,  7  La.  Ann.  341;  State  v.  Baltimore  Co.,  13 
Md.  190 ;  Clarkson  v.  Edes,  4  Cow.  478,  480 ;  Hagar  v.  Clark,  78  N.  Y.  51, 
overruling  s.  e.,  12  Hun,  529,  Schr.  Arglye  v.  Worthington,  17  Ohio,  465; 
Bramble  v.  Cuhner,  78  Fed.  502,  42  U.  S.  App.  303.  In  United  States  v. 
Shea,  152  U.  S.  187,  38  L.  Ed.  406,  14  Sup.  Ct.  521,  a  charter-party  is  held 
to  operate  as  a  demise  of  the  vessel.  But  see  Richardson  v.  Winsor,  3 
Cliff.  399,  Fed.  Cas.  11,795,  remarking  that  courts  incline  to  regard  such 
a  contract  as  not  a  demise  of  the  ship.  Cited  in  Thwing  v.  Great  Western 
Ins.  Co.,  103  Mass.  405,  4  Am.  Rep.  671,  holding  that  charter  of  the  whole 
tonnage  of  a  ship  transfers  only  the  cargo  space;  New  Orleans-Belize  etc. 
S.  S.  Co.  V.  United  States,  239  U.  S.  206,  60  L.  Ed.  280,  36  Sup.  Ct.  78, 
holding  owner  and  not  charterer  liable  for  injuries  to  vessel  during  charter, 
due  to  marine  risks  and  for  demurrage  thereafter  during  period  of  repair. 

1  Cr.  239-252,  2  Ik  Ed.  94,  WOOD  v.  OWINOS. 

Wlien  deed  complete  and  necessity  for  recording. 

Cited  in  De  Lane  v.  Moore,  14  How.  266,  14  L.  Ed.  265,  and  Moore  v. 
Thomas,  1  Overt.  203,  applying  principle  in  holding  unrecorded  deed  bind- 
ing between  the  parties;  as  also  in  Salmon  v.  Clagett,  3  Bland  Ch.  172, 
and  Taylor  v.  Holter,  1  Mont.  711,  the  latter  holding  further  that  a  defec- 
tive acknowledgment  does  not  destroy  the  deed  as  between  the  parties; 
Hutchins  v.  Taylor,  12  Fed.  Cas.  1081,  and  Clagett  v.  Salmon,  5  Gill  &  J* 
325y  both  arguendo. 

1  Cr.  252-259,  2  L.  Ed.  98,  UNITED  STATES  V.  SIBOCS. 

This  case  is  an  instance  of  the  exercise  of  apx)ellate  jurisdiction  by  the 
Supipeme  Court  in  a  criminal  case;  but  the  court  later  denied  its  right 
to  this  jurisdiction,  declining  to  be  bound  by  this  precedent.  United 
States  v.  Moore,  3  Cr.  172,  2  L.  Ed.  401.  See  dissenting  opinion  in  Ex 
parte  Bollman,  4  Cr.  104,  2  L.  Ed.  564;  United  States  v.  Sanges,  144  U.  S. 
319,  321,  36  L.  Ed.  449,  450,  12  Sup.  Ct.  612,  613,  reviewing  the  question 
of  the  Supreme  Court's  appellate  jurisdiction,  Darden  v.  Lines,  2  Fla. 
580,  approves  the  course  of  the  Supreme  Court  in  declining  to  be  bound  by 
this  case.  Commonwealth  v.  Cummings,  3  Cush.  218,  50  Am.  Dec.  737,  cites 
the  case  in  holding  that  the  State  may  not  maintain  writ  of  error  in  crim- 
inal cases;  dissenting  opinion  in  Ex  parte  Crane,  5  Pet.  203,  8  L.  Ed.  97, 
arguing  that  Supreme  Court  may  not  issue  mandamus;  State  v.  Thayer, 
158  Mo.  50,  58  S.  W.  13,  as  an  instance  of  case  in  which  Supreme  Court 
took  appellate  jurisdiction  of  criminal  case. 

Distinguished  in  New  v.  Oklahoma,  195  U.  S.  256,  49  L.  Ed.  184,  25 
Sup.  Ct,  68,  Supreme  Court  cannot  review  judgment  of  Oklahoma  Supreme 
Court  in  capital  cases. 

State's  right  to  appeal  ifi  criminal  case.    Note,  19  L.  R.  A.  844. 


1  Cr.  259-282  NOTES  ON  U.  S.  REPORTS.  ,  168 

Act  of  1801,  reepectlng  DlBtrtct  of  OolmnbU,  gives  no  new  remedy  for 
recovery  of  penalties,  but  leaves  that  prescribed  by  State  law  in  force. 

The  mle  is  applied  in  the  following  cases  respecting  indictments  in  the 
District,  dismissing  them  as  not  according  to  the  State  statute:  United 
States  V.  Ellis,  1  Cr.  C.  C.  126,  Fed.  Cas.  16,046 ;  United  States  v.  Pickering, 

2  Cr.  C.  C.  117,  Fed.  Cas.  16,042 ;  United  States  v.  Rounsavel,  2  Cr.  C.  C. 
134,  Fed.  Cas.  16,199.  Cited  in  United  States  v.  Evans,  4  Cr.  C.  C.  106, 
Fed.  Cas.  15,066,  holding  that  on  conviction  under  gaming  indictment, 
judgment  for  statutory  penalty  may  be  entered;  United  States  v.  Laescki, 
29  Fed.  700,  holding  indictment  for  counterfeiting  improper  and  that 
informer  must  sue  for  penalty;  United  States  v.  Abbott,  24  Fed.  Cas.  744, 
and  United  States  v.  Tillotson,  28  Fed.  Cas.  180,  holding  that  a  prescribec^ 
statutory  remedy  cannot  be  varied  from;  United  States  v.  The  C.  B. 
Church,  1  Woods,  277,  Fed.  Cas.  14,762,  arguendo. 

Laws  of  Maryland  and  Virginia  were  left  in  force  in  respective  portions 
of  District  of  Oolumbia  ceded  by  those  States. 

Cited  in  United  States  v.  Eliason,  16  Pet.  301,  10  L.  Ed.  972,  following 
rule;  dissenting  opinion  in  Slack  v.  Perrine,  9  App.  D.  C.  169,  majority 
holding  that  laws  of  Maryland  respecting  custody  and  control  of  infant 
children  not  applicable  where  question  has  been  determined  by  court  of 
New  Jersey  having  jurisdiction  of  subject  matter  and  parties. 

Extent  of  adoption  of  common  law.    Note,  Ann.  Oas.  1913E,  1241. 

Miscellaneous.  Cited  In  re  Buell,  3  Dill.  118,  Fed.  Cas.  2102,  holding 
libel  in  district  an  offense  against  United  States;  State  v.  Cummings,  33 
Conn.  264,  89  Am.  Dec.  209,  on  point  that  common  law  is  in  force  in  dis- 
trict. 

1  Or.  259-282,  2  Ii.  Ed.  101,  FEITWICK  v.  SEABS. 

Bight  of  admlnlstratoTB  appointed  in  Maryland  before  District  of  Colum- 
bia ceded  to  sae  in  District  without  first  obtaining  letters  tbereln. 

Approved  in  Barrielle  v.  Bettman,  199  Fed.  844,  in  suit  on  claim  due 
estate  of  deceased  citizen  of  France  from  citizen  of  Ohio,  laws  of  Ohio 
determine  right  of  decedent's  heirs  to  sue;  Turner  v.  Campbell,  124  Mo. 
App.  138,  101  S.  W.  121,  ancillary  letters  must  be  taken  out  in  this  State 
to  collect  debt  from  person  residing  therein ;  Vaughn  v.  Northup,  15  Pet.  6, 
10  L.  Ed.  641,  Noonan  v.  Bradley,  9  Wall.  400,  19  L.  Ed.  759,  upon  point 
that  foreign  administrator  or  executor  may  not  sue  in  the  domestic  court 
ivithout  first  obtaining  letters ;  Trecothick  v.  Austin,  4  Mason,  32,  Fed.  Cas. 
14,164,  doubting  whether  English  administration  authorized  suit  in  the 
colonies  before  the  revolution;  Embry  v.  Miller,  1  A.  K.  Marsh.  302,  10 
Am.  Dec.  735,  Lusk  v.  Kimball,  87  Fed.  547,  holding  suit  so  instituted 
a  mere  nullity  which  cannot  be  cured  by  subsequently  obtaining  letters  and 
amending  pleadings;  Le  Cesne  v.  Cottin,  2  Mart.  (N.  S.)  486,  arguing 
against  the  right  of  foreigner  to  act  as  beneficiary  heir  in  Louisiana. 
As  authority  for  the  proposition  that  executors  and  administrators  have 
no  authority  outside  the  State  where  they  are  appointed :  Leavens  v.  Butler, 


159  THOMPSON  v.  JAMESON.  1  Cr.  282-290 

8  Port.  401 ;  St.  James  Church  v.  Walker,  1  Del.  Ch.  293 ;  Davis  v.  Smith, 

5  Ga.  296,  48  Am.  Dec.  295;  Southwestern  R.  Co.  v.  Paulk,  24  Ga.  371; 
Naylor  v.  Moody,  2  Blackf.  248;  Lucas  v.  Tucker,  17  Ind.  44;  Moore  v. 
Tanner,  6  T.  B.  Mon.  46,  17  Am.  Dec.  89;  Haven  v.  Foster,  9  Pick.  134, 
19  Am.  Dec.  862;  In  re  Stockman,  71  Mich.  193,  38  N.  W.  881;  Winter  v. 
Winter,  Walk.  212;  Sabin  v.  Oilman,  1  N.  H.  193;  Taylor  v.  Barron,  36 
N.  H.  495 ;  Pelletreau  V.  Rathbone,  1  N.  J.  Eq.  333 ;  Haight  v.  Executors,  15 
N.  J.  L.  185;  Morrell  v.  Dickey,  1  Johns.  Ch.  156;  Campbell  v.  Tousey, 
7  Cow.  68;  Leake  v.  Gilchrist,  2  Dev.  81;  Plummer  v.  Brandon,  5  Ired.  Eq. 
194;  Vaughn  v.  Barrett,  5  Vt.  336;  26  Am.  Dec.  807;  Crumlish  v.  Shenan- 
doah R.  Co.,  40  W.  Va.  650,  22  S.  E.  99.  Melius  v.  Thompson,  1  CliflF.  128, 
131,  Fed.  Cas.  9405,  holding  that  an  executor  appointed  in  California  can- 
not be  substituted  for  the  decedent  in  an  equity  suit  in  Massachusetts 
abated  by  decedent's  death;  Eels  v.  Holder,  2  McCrary,  622,  12  Fed.  669, 
holding  that  under  Kansas  statutes  mortgage  on  Kansas  lands,  made  by 
Kansas  mortgagor  to  Ohio  mortgagee,  is  assets  in  hands  of  mortgagee's 
administrator  in  Ohio ;  Greer  v.  Ferguson,  56  Ark.  330,  19  S.  W.  967,  hold- 
ing that  foreign  executor  appearing  and  defending  suit  against  decedent 
does  not  confer  jurisdiction,  nor  do^s  statute  authorizing  foreign  executors 
to  sue  include  right  to  be  sued;  Louisville  R.  Co.  v.  Brantley,  96  Ky.  304, 
49  Am.  St.  Bep.  296,  28  S.  W.  478,  holding  that  statute  authorizing  foreign 
administrators  to  sue  for  accounts  due  intestates  does  not  allow  action 
by  Indiana  administrator  to  recover  damages  for  tort  causing  death  of  his 
intestate. 

Distinguished  in  Moore  v.  Petty,  135  Fed.'  673,  68  C.  C.  A.  306,  executor 
may  sue  in  state  other  than  that  of  appointment  to  recover  from  his  agents 
proceeds  of  sale  of  land  belonging  to  decedent's  estate;  Glassell  v.  Wilson, 
4  Wash.  C.  C.  60,  Fed.  Cas.  5477,  holding  that  Pennsylvania  practice  per- 
mits suit  by  foreign  executor  or  administrator. 

Foreigfn  judgments  against  an  executor  or  administrator.     Note,  27 
L.  B.  A.  102, 107,  108. 

Law  governing  succession  and  administration.    Note,  2  E.  B.  0.  90. 

Miscellaneous.  Cited  to  point  that  remedies  and  proceedings  are  gov- 
erned by  the  law  of  the  place  where  suit  is  brought,  in  Scobey  v.  Gibson, 
17  Ind.  580;  Shaffer  v.  Bolander,  4  Greene,  202;  Union  Bank  v.  Smith, 
4  Cr.  C.  C.  36,  Fed.  Cas.  14,362 ;  Jones  v.  Gibson,  1  N.  H.  268 ;  Hinkley  v. 
Marean,  3  Mason,  90,  Fed.  Cas.  6,523;  Riddle  v.  Bedford  County,  7  Serg. 

6  R.  392 ;  State  v.  Clark,  4  Strob.  315. 

1  Cr.  282-290,  2  L.  Ed.  100,  THOMPSON  v.  JAMESON. 

Where  complaint  declares  for  amount  of  decree,  without  interest  and  decree 
^t  in  evidence  includes  interest,  variance  is  fatal. 

Cited  in  Pearsall  v.  Phelps,  3  A\a.  527,  applying  principle  in  holding 
that  declaration  averring  judgment  in  "the  county  of  Richmond"  is  not 
supported  by  proof  of  judgment  in  "the  city  of  Albany";  Griffin  v.  Gana- 
way,  6  Ala.  152,  holding  that  difference  of  one-fourth  of  cent  between 


1  Cr.  290-309  NpTES  ON  U.  S.  REPORTS,  160 

amount  of  attachment  alleged  and  amount  proven  is  immaterial;  Caldwell 
v.  Bell,  3  Ark.  422,  that  averment  of  judgment  with  costs,  naming  costs,  is 
not  sustained  by  proof  of  judgment  with  costs,  not  naming  amount; 
Rapelye  v.  Bailey,  3  Conn.  444,  8  Am.  Dec.  201,  holding  that  contract  of 
guaranty  must  be  proved  as  laid;  Williams  v.  Preston,  3  J.  J.  Marsh.  606, 
20  Am.  Dec.  185,  holding  that  variance  between  declaration  and  proof,  as 
to  amount  and  character  of  judgment,  is  fatal;  Tilford  v.  Oakley,  Hempst. 
\197,  Fed.  Cas.  14,038a,  holding  that  action  of  debt  is  proper  remedy  to 
enforce  decree  for  payment  for  specific  sum  of  money;  cited  in  Cain  v. 
Butler's  Admrs.,  4  Hayw.  (Tenn.)  64,  not  in  point. 

1  Or.  290-299,  2  Ii.  Ed.  112,  MANDEVILLi:  y.  BIDDLR 

Assignee  of  note  may^  sue  maker  in  debt;  may  also  sue  immediate  assignor 
in  assumpsit  but  not  remote  assignor. 

Cited  in  Riddle  v.  Mandeville,  5  Cr.  328,  3  L.  Ed.  116,  where  it  was  held 
that  assignee  might,  however,  sustain  fuch  suit  in  equity;  Bank  of  United 
States  V.  Weisiger,  2  Pet.  347,  7  L.  Ed.  447,  remarking  that  doctrine  is 
peculiar  to  Kentucky  and  Virginia,  and  holding  that  every  effort  must  first 
be  made  to  collect  from  maker  before  -suing  indorser ;  by  majority  holding 
in  Dunlop  v.  Harris,  5  Call,  55,  and  in  Caton  v.  Lenox,  5  Rand.  42,  and 
Drake  v.  Johnson,  Hard.  (Ky.)  230.  Cited  in  Drane  v.  Scholfield,  6  Leigh, 
396,  and  Long  v.  Pence,  93  Va.  587,  25  S.  E.  594,  noting  that  subsequent 
Vii^nia  statute  conferred  right  to  sue  remote  assignor  at  law ;  McCarty  v* 
Rhea,  1  Blackf.  55,  assignee  cannot  sue  remote  assignor^  dissenting  opinion 
in  Hunter  v.  Hempstead,  1  Mo.  70,  arguing  for  rule;  on  point  that  action 
for  debt  lies  on  promissory  note  in  National  Bank  v.  Abell,  63  Me.  349,  De 
Proux  v.  Sargent,  70  Me.  271,  and  Payne  v.  Smith,  12  N.  H.  41 ;  Moses  v. 
Bank,  149  U.  S.  303,  87  L.  Ed.  745, 13  Sup.  Ct.  901,  discussing  question  under 
statute  of  frauds;  Hurd  v.  Hall,  12  Wis.  136,  on  question  of  warranty  by 
assignee  of  a  chose  in  action. 

Distinguished  in  Clifford  v.  Keating,  3  Scam.  252,  holding  that  statute 
authorized  suit  against  remote  indorser;  Walker  v.  Brooks,  125  Mass.  245, 
upon  general  question  of  right  of  assignee  to  sue  in  equity ;  Banking  Co.  v. 
Myer,  12  N.  J.  L.  147,  and  Watson  v.  Hahn,  1  Colo.  495,  on  statutory 
grounds;  Smith  v.  Harley,  8  Mo.  560,  holding  may  sue  remote  indorser  in 
equity.  See  appendix,  1  Cr.  367-461,  2  L.  Ed.  139,  opinion  of  Cranch,  J., 
at  circuit,  in  Dunlop  v.  Silver,  1  Cr.  C.  C.  27,  Fed.  Cas.  4169,  reversed  by 
principal  case. 

,  Release  of  indorser  of  note  by  failure  to  enforce  liability  of  maker. 
Note,  18  L.  B.  A.  (N.  S.)  531. 

Questions  of  State  law  as  to  which  State  court  decisions  must  be  fol- 
lowed in  actions  originating  in,  or  removed  to,  Federal  courts. 
Note,  40  L.  B.  A.  (N.  S.)  888. 

1  Or.  299-309,  2  L.  Ed.  115,  STUABT  y.  LAIBD.    ' 

Ck>ngre8B  may  establish  such  inferior  courts  as  It  sees  fit  and  transfer  a 
cause  from  one  such  to  anotheir. 


161  STUART  ▼.  LAIRD.  1  Cr.  299-309 

Cited  in  United  States  v.  Haynes,  29  Fed.  696,  697,  where  indictment  was 
remitted  from  District  to  Circuit  Court;  dissenting  opinion  in  Curless  v. 
Watson,  180  Ind.  121,  102  N.  E.  510,  majority  holding  act  making  final 
decisions  of  appellate  court  in  certain  cases  void. 

FarULcomin^  bond  is  an  appendage  to  canfle. 

Cited  in  White  t.  Crump,  19  W.  Va.  693,  hblding  supersedeas  bond  not 
contract  within  obligation  clause;  State  v.  Blair,  29  W.  Va.  476,  2  8.  E. 
334,  holding  that  supersedeas  to  original  judgment  will  supersede  judgment 
on  delivery  bond. 

ConBtraction  of  statute  fixed,  hy  coatemporaxLeous  construction  evidenced 
Iff  practice  tliereunder,  followed  and  acquiesced  in  for  period  of  fears. 

Approved  in  United  States  v.  Midwest  Oil  Co.,  236  U.  S.  473,  59,  L.  Ed. 
681,  35  Sup.  Ct.  309,  upholding  right  of  President  to  withdraw  public  lands 
without  authorization  from  CcMigress;  United  States  Fidelity  etc.  Co.  v. 
Commonwealth,  186  Fed.  291,  108  C.  C.  A,  331,  upholding  recovery  on 
ofScial  bonds  of  county  commissioners  for  use  of  county  as  poor  district; 
Ritcr-Conley  Mfg.  Co.  v.  Aiken,  203  Fed.  702,  121  C.  C.  A.  655,  holding 
building  structures  to  be  "manufactures"  in  construction  of  patents;  Teel 
V. -Chesapeake  etc.  Ry.  Co.,  204  Fed.  920,  47  L.  R.  A.  (N.  S.)  21,  123 
C.  C.  A,  240,  upholding  provision  of  Federal  Employee's  Liability  Act  tak- 
injT  away  right  of  removal  from  State  courts  to  Federal  courts;  Leary  v. 
Mayor  etc.  of  Jersey  City,  208  Fed.  858,  126  C.  C.  A.  12,  upholding  location 
of  land  for  assessment  and  taxation  in  city  limits;  Levin  v.  United  States, 
128  Fed.  829,  holding  Congress  may  empower  State  courts  to  admit  quali- 
fied aliens  to  citizenship;  Coming  v.  Board  of  Commrs.,  102  Fed.  61,  con- 
struing Gen.  Kan.  Laws  1876,  chapter  107,  relative  to  issuance  of  bonds; 
State  V.  Board  of  School  Commrs.,  183  Ala.  674,  63  South.  82,  upholding 
construction  of  statute  providing  for  lease  of  school  lands ;  State  v.  Carter, 
174  Ala.  279,  56  South.  979,  act  providing  judge  of  inferior  criminal  court 
shall  act  as  ex  officio  of  civil  court  not  violative  of  Constitution  prohibiting 
holding  two  offices  by  one  person ;  Railroad  Commrs.  v.  Market  St.  Ry.  Co., 
132  Cal.  680,  64  Pac.  1066,  holding  that  legislative  iiiterpretation  of  Con- 
stitution may  be  considered  by  courts;  Board  of  Water  Commissioners  v. 
Curtis,  87  Conn.  512,  517,  89  Atl.  J.91,  192,  upholding  construction  of  word 
"law"  as  "general  law"  as  adopted  in  resolution  of  condemnation;  State  v. 
Bryan,  50  Fla.  390,  39  South.  960,  construing  school  laws ;  Hill  v.  Tohill, 
225  111.  393,  80  N.  E.  256,  upholding  long  construction  of  statute  with 
reference  to  partition  fences ;  McCurtain  v.  Grady,  1  Ind.  Ter.  125,  38  S.  W. 
70,  upholding  right  of  discoverer  to  take  coal  within  radius  of  one  mile 
from  point  of  discovery;  State  v.  Young,  137  La.  120,  68  South.  247,  up- 
holding right  of  Governor  to  fill  vacancy  in  of&ce  during  recess  of  Seiiate ; 
State  V.  New  Orleans  By.  &  Light  Co.,  116  La.  148,  40  South.  598,  ihere 
tinder  same  provisions  in  two  Constitutions  exempting  manufacturers  from 
license  taxes,  legislature  has  for  more  than  twenty  years  licensed  electric 
light  companies,  construction  entitled  to  weight;  Baltimore  City  v.  John- 
son, 96  Md.  743,  54  Atl.  648,  construing  tax  laws;  State  v.  Northern  Pac. 
By.  Co.,  95  Minn.  47,  103  N.  W.  732,  foreign  railroad,  paying  taxes  under 
I— 11 


1  Cr.  299-309  NOTES  ON  U,  S.  REPORTS,  •  162 

gross  earnings  law,  not  prevented  by  failure  to  list  credits  from  deducting^ 
debtS|  from  such  credits;  Henry  v.  State,  87  Miss.  57,. 58,  39  South.  871, 
Acrts  1900,  p.  63,  c.  56,  relating  to  occupancy  of  lands  by  convicts,  does  not 
repeal  Rev.  Code  1892,  §  3201,  providing  for  leasing  of  lands  acquired  by 
prison  board;  Gill  v.  Board  of  Commissioners,  160  N.  E.  190,  48  L.  B.  A. 
(Nv  8.)  293,  76  S.  E.  209,  upholding  construction  that  petition  for  forma- 
tion of  school  district  must  be  signed  by  "f reeholders  who  are  voters ;  Mis- 
souri etc.  Ry.  Co.  v.  State,  29  Okl.  646,  119  Pac.  119,  upholding  interpreta- 
tion of  "public  conveniences"  in  Constitution  as  including  union  passenger 
depot;  Higgins  v.  Brown,  20  Okl.  371,  94  Pac.  709,  upholding  ^ght  of 
State  to  prosecute  crime  for  which  indictment  was  found  under  territory; 
Ex  parte  CIrump,  10  Okl.  Cr.  147,  135  Pac.  434,  upholding  pardon  granted 
by  Lieutenant-governor  whjen  Governor  absent  from  State;  Higgins  v. 
Brown,  1  Okl.  Cr.  48,  94  Pac.  709,  indictment  for  murder  pending  in  Fed- 
eral court  of  Indian  Territory  when  State  admitted  to  Union  cog^zable  in 
District  Court  of  State  after  admission;  Floyd  v.  Quinn,  24  R.  I.  161,  52 
Atl.  885,  upholding  State  judiciary  lict  of  1893;  Ex  parte  Anderson,  46 
Tex.  Cr.  399,  81  S.  W.  987,  city  court  has  no  jurisdiction  to  try  accused  for 
alleged  violation  of  State  penal  statute;  State  v.  Stimpson,  78  Vt.  132, 
1  L.  R.  A.  (N.  S.)  1153,  62  Atl.  17,  upholding  statute  permitting  prosecu- 
tion by  information  all  crimes  except  those  punishable  by  death  or  life 
imprisonment;  Colton  etc.  More  v.  Montpelier,  71  Vt.  416,  45  Atl.  1040, 
construing  Vt.  Stats.,  §  365,  authorizing  towns  to  exempt  manufacturing 
establishments  from  taxation;  State  v.  Davis,  62  W.  Va.  510,  14  L.  R.  A. 
(N.  S.)  1142,  60  S.  E.  588,  holding  sale  of  intoxicating  liquors  by  retail 
dealer  a  sale  at  place  of  business ;  State  v.  Harden,  62  W.  Va.  326,  58  S.  E. 
720,  holding  certain  acts  vest  in  council  of  town  sole  power  to  grant  or 
refuse  license  for  sale  of  intoxicating  liquors;  dissenting  opinion  in  Fair- 
bank  V.  United  States,  181  U.  S.  319,  320,  321,  323,  45  L.  Ed.  877,  878,  879, 
21,  Sup.  Ct.  659,  662,  664,  majority  holding  void  stamp  tax  on  foreign  bill 
of  lading  as  tax  on  experts;  dissenting  opinion  in  Railroad  Commrs.  v. 
Market  St.  Ry.  Co.,  132  Cal.  690,  64  Pac.  1070,  majority  holding  that  legis- 
lative interpretation  of  Constitution  may  be  considered  by  courts;  dissent- 
ing opinion  in  State  v.  Smith,  158  Ind.  561,  majority  upholding  act  of 
1899,  authorizing,  for  taxing  purposes,  deduction  of  mortgage  indebtedness 
from  assessed  value ;  dissenting  opinion  rn  Coyle  v.  Smith,  28  Okl.  220,  113 
Pac.  984,  majority  holding  invalid  provision  in  enabling  act  by  which 
State  was  admitted  requiring  capital  to  be  located  in  one  place  for  certain 
period;  dissenting  opinion  in  State  v.  Marcus,  160  Wis.  407,  152  N.  W. 
438,  majority  holding  legislative  act  "entered"  on  journals  of  each  house 
when  entered  by  number  or  title ;  United  States  v.  Ship  Recorder,  1  Blatchf . 
223,  Fed.  Cas.  16,129,  as  to  construction  of  importation  in  foreign  vessels 
law;lUnited  States  v.  Richardson,  28  Fed.  71,  adhering  to  settled  practice 
in  summoning  of  grand  jurors;  Rand  v.  United  States,  38  Fed.  667,  re- 
quiring treasury  department  to  adhere  to  practice  of  paying  certain  com- 
missioners* fees ;  Schell  v.  Fauch^,  138  U.  S.  572,  34  L.  Ed.  1043, 11  Sup.  Ct. 
380,  sustaining  validity  of  prospective  protests  against  duties  charged; 
McPherson  v.  Blacker,  146  U.  S.  27,  86  L.  Ed.  874,  13  Sup.  Ct.  7,  as  to 


163  STyART  V.  LAIRD.  ICr.  299-309 

practice  under  presidential  elector  law*,  In  re  Warfield,  22  Gal.  71,  83 
Am.  Dec.  58,  affirming  certain  probate  practice,  although  contrary  to  letter 
of  the  statute;  People  v.  Loewenthal,  93  111:  204,  sustaining  a  corporate 
charter,  although  presciibed  formalities  had  b^en  neglected ;  Fall  v.  Hazel- 
rigg,  45  Ind.  585,  14  Am.  Bep.  282,  applying  rule  to  certain  portion  of 
statute  of  frauds ;  Board  of  Commrs.  v.  Bunting,  111  Ind.  145, 12  N.  E.  151, 
affinning  power  of  county  commissioners  to  build  jail;  State  v.  Harrison, 
116  Ind.  307,  308,  19  N.  E.  149,  150,  upholding  settled  view  as  to  amount 
of  salaries  authorized  by  certain  laws;  Hovey  ▼.  State,  119  Ind.  388,  21 
N.  E.  890,  declaring  right  o'f  general  assembly  to  appoint  certain  trustees 
upon  ground  of  settled  practice;  Parvin  v.  Wimberg,  130  Ind.  565,  30 
Am.  St.  Bep.  258,  30  N.  E.  791,  approving  construction  of  election  law, 
which  election  commissioners  had  taken  upon  advice  of  leading  Ifiwyers; 
Maxent  v.  Maxent,  1  La.  469,  470,  affirming  practice,  commonly  used,  of 
recording  family  meetings  in  French ;  Newton  v.  Griffith,  1  Har.  &  G.  138, 
sustaining  construction  of  act  of  descents  dn  ground  of  long  acquiescence; 
Opinion  of  Justice,  126  Mass.  594,  595,  applying  rule  of  contemporaneous 
construction  in  determining  meaning  of  "money  bill"  in  Constitution; 
Winchester  v.  Glazier,  152  Mass.  323,  applying  this  rule  of  interpretation 
to  partnership  articles ;  Clark  v.  Mowyer,  5  Mich.  468,  disregarding  certain 
alleged  irr^nlarities  in  notices  of  tax  sale  because  long  acquiesced  in; 
Franklin  v.  Kelley,  2  Neb.  87,  approving  a  construction  of  pre-emption  law 
of  thirty  years'  standing;  State  v.  Glenn,  18  Nev.  45, 1  Pac.  191,  upholding 
settled  practice  of  the  signing  of  bills  by  assistant  secretary  of  senate;  State 
T.  Gray,  21  Nev.  389,  32  Pac.  194,  sustaining  practice  of  publishing  consti- 
tutional amendments  in  statutes  and  not  in  newspapers,  as  sufficient ;  Fritcs 
V.  Kuhl,  51  N.  J.  L.  201,  17  Atl.  105,  affirming  temporary  appointment  to 
office  by  executive  as  settled  practice ;  Attorney  General  v.  Bank,  5  Ired.  Eq. 
72,  den3ring  claim  that  stockholders  should  pay  tax  under  the  statute  since 
corporation  had  for  years  paid  without  question ;  Jack  v.  Shoemaker,  3  Binn. 
285,  'applying  rule  to  construction  of  statute  respecting  summons ;  Pennsyl- 
vania R.  R.  V.  Pittsburgh,  104  Pa.  St.  558,  denying  claim  for  municipal 
tax  against  certain  railroad  property  on  ground  of  contrary  construction 
settled. for  twenty  years;  Billis  v.  State,  2  McCord,  15,  holding  State  bank 
notes  valid  because  legality  long  acquiesced  in;  Laval  v.  De  Lieserline,  4 
McCord,  75,  sustaining  power  of  municipality  to  appoint  sheriff  from  long 
user;  Smith  v.  Hickman,  Cooke  (Tenn.),  336,  sustaining  settled  construe- 
tion  of  act,  in  land  case ;  Cox  v.  Breedlove,  2  Yei^.  502,  sustaining,  from 
long  user,  practice  of  appointing  special  judges  where  regular  ones  dis- 
qualified ;  Hampton  v.  Allison,  9  Humph.  115,  approving  settled  interpreta- 
tion of  act  respecting  process  in  Justice  Court;  Hillebrand  v.  McMahan, 
59  Tex.  455,  holding  similarly  as  to  act  respecting  jurisdiction  in  same; 
Treawirer  v.  Kelsey,  4  Vt.  388,  upholding  act  authorizing  recognizance  to 
be  proved  before  assistant  fcounty  judge  from  long  usage  thereunder, 
although  literally  unconstitutional;  Emerson  v.  Washburn,  8  Vt.  14,  ap- 
proving settled  practice  allowing  execution  for  costs ;  Boyden  v.  Brookline, 
8  Vt.  286,  holding  rule  that  town  officers  not  entitled  to  fees  for  services,, 
settled  by  long  usage;  dissenting  opinion  in  Oilman  v.  Morse,  12  Vt.  558,. 


I  Cr.  299-309  NOTES  ON  U.  S.  IHjlPORTS.         "  164 

maintaining  State  ijower  to  organize  militia  from  long  exercise  thereof; 
France  v.  Connor,  3  Wyo.  463,  27  Pac.  575,  construing  certain  congressional 
territorial  legislation  as  to  dower;  Commissioners  v.  Gwin,  136  Ind.  572, 
36  N.  E.  240,  holding  that  established  usage  requi^d  Circuit  Courts  to  be 
held  in  county  seat;  Commonwealth  v.  Lockwood,  109  Mass.  339,  12  Am. 
Bep.  713,  holding  that  by  settled  practice  Governor  may  pardon  after 
verdict  and  before  sentence ;  People  v.  Mayor  etc.,  25  Wend.  38,  justifying 
holding  that  aldermen  may  sit  as  judges  in  New  York,  from  settled  usage ; 
Simpson  v.  Willard,  14  S.  C.  195,  deciding  that  under  settled  usage  ap- 
pointee upon  death  of  incumbent  held  for  unexpired  term  merely;  dis- 
senting opinion  in  Trout  etc.  Club  v.  Mather,  68  Vt.  354,  36  Atl.  329, 
arguing  as  to  meaning  of  ''boatable  waters"  in  the  Constitution;  Lafayette 
etc.  R.  R.  V.  Geiger,  34  Ind.  203,  upholding  statute  authorizing  municipal 
aid  to  railroads ;  Detroit  v.  Chapin,  108  Mich.  143,  66  N.  W.  589,  affirming 
as  valid  signature  by  Governor  to  bill  after  adjournment  from  settled 
practice  though  possibly  not  slrictly  authorized;  United  States  V.  Rein- 
deer, 27  Fed.  Cas.  761,  upholding  settled  interpretation  of  vessel  license 
law  against  its  letter.  Upholding  validity  of  variety  of  laws  upon  ground 
of  long  acquiescence:  Prigg  v.  Pennsylvania,  16  Pet.  621,  10  L.  Ed.  1091, 
fugitive  slave  law ;  The  Laura,  114  U.  S.  4l6,  29  L.  Ed.  148,  5  Sup.  Ct.  883, 
statute  authorizing  secretary  of  treasury  to  remit  steamboat  penalties; 
McPherson  v.  Blacker,  146  U.  S.  27,  S5  L.  Ed.  874,  13  Sup.  Ct.  7,  sustaining 
Michigan  presidential  elector  law;  Ex  parte  Gist,  26  Ala.  164,  affirming 
Federal  statute  as  to  commitment  by  justice  of  peace;  McElvain  v.  Mudd, 
44  Ala.  54,  4  Am.  Bep.  110,  as  to  slave  legislation  of  Congress;  Rogers  v. 
Beiler,  3  Mart.  (La.)  (0.  S.)  670,  sustaining  early  act  of  territorial  Gov- 
ernor creating  office  of  special  administrator;  State  v.  New  Orleans  Co., 

II  Mart.  (La.)  (0.  S.)  311,  affirming  power  of  Congress  to  govern  the 
territories;  Holmes  v.  Hunt,  122  Mass.  516,  23  Am.  Rep.  385,  sustaining 
validity  of  reference  of  account  to  auditor;  dissenting  opinion  in  Parsons 
V.  Russell,  11  Mich.  124,  arguing  that  statute  was  valid  from  acquiescence ; 
Detroit  Ry.  v.  Mills,  85  Mich.  646,  48  N.  W.  1009,  affirmirig  municipal  right 
to  authorize  electric  railways;  Bell  v.  West  Point,  51  Miss.  276,  applying 
rule  in  considering  jurisdiction  of  Justices*  Courts  under  the  statutes; 
NewGomb  v.  Smith,  2  Pinn.  138,  upholding  mill-dam  law;  United  States  v. 
Mackenzie,  30  Fed.  Cas.  1166,  upholding  act  of  1800,  as  to  crimes  in  navy. 

In  following  cases  the  rule  is  applied  in  sustaining  various  statutes  upon 
ground  that  legislation  attacked  was  similar  to  other  statutes  whi^h  had 
been  upon  statute  books  for  years;  Cooley  v.  Board,  12  How.  315,  13 
L.  Ed.  1008,  upholding  half  pilotage  law ;  Auffmordt  v.  Hedden,  137  U.  S. 
329,  34  L.  Ed.  680,  11  Sup.  Ct.  109,  provision  of  tariff  act  making  merchant 
appraiser's  decision  final ;  Field  v.  Clark,  143  U.  S.  691,  86  L.  Ed.  309,  15 
Sup.  Ct.  504,  of  same  law,  giving  President  power  to  suspend  certain 
duties;  Weaver  v.  Templin,  113  Ind.  301,  14  N.  E.  601,  where  municipal 
corporations  were  held  authorized  to  make  repairs  without  notice;  Blood- 
good  V.  Railroad,  18  Wend.  48,  31  Am.  Dec.  345,  sustaining  right  of  eminent 
domain  for  railroad  as  similar  to  turnpike;  Knoxville  R.  R.  v.  Hicks,  9 
Baxt.  451,  affirming  l^slative  power  to  exempt  corporations  from  taxa- 


165  HAMILTON  v.  RUSSELL.  1  Cr.  309-318 

tion;  Bridges  v.  Shallcross,  6  W.  Va.>576,  involving  a  statute  respecting 
State  penitentiary;  dissenting  opinion  in  Scott  v.  Sandford,  19  How.  616, 
15  L.  Ed.  788,  arguing  as  to  congressional  power  over  slavery  in  the  terri- 
tories; Stewart  v.  Supervisors,  30  Iowa,  23,  1  Am.  Bep.  248,  sustainitig  act 
authorizing  municipal  aid  to  railroads;  Cooper  Co.  v.  Ferguson,  113  U.  S. 
733,  28  L.  Ed.  1138,  5  Sup.  Ct.  741,  applying  the  principle  in  holding  a 
constitutional  clause  may  be  interpreted  in  the  light  of  a  contemporaneous 
statute;  dissenting  opinion  j^n  Sparf  v.  United  States,  156  U.  S.  169,  39 
L.  Ed.  884,  15  Sup.  Ct.  319,  arguing  that  by  early  construction  of  law, 
juries  in  criminal  cases  might  disr^ard  court's  instructions  as  to  the  law, 
majority  sustaining  later  cases,  contra;  Ridgely  v.  Iglehart,  3  Bland  Ch. 
548,  in  general  discussing  of  laws  respecting  real  property  liens. 

Distinguished  in  Fairbank  v.  United  States,  181  U.  S.  307,  309,  45  L.  Ed. 
872,  873,  21  Sup.  Ct.  658,  holding  void  stamp  tax  on  foreign  bill  of  lading 
as  tax  on  exports;  State  v.  Nashville  Baseball  Club,  127  Tenn.  304,  Ann. 
Cas.  1914B,  1243,  154  S.  W.  1154,  denying  application  of  rule  in  holding 
void  Sunday  law  that  had  not  passed  three  readings  on  three  different^ 
days ;  O'Donnell  v.  Glenn,  9  Mont.  463,  23  Pac.  1020,  on  ground  that  usage 
must  be  uniform  and  not  total  joisregard  of  law;  dissenting  opinion  in 
State  V.  Kelsey,  44  N.  J.  L.  49,  discussing  extent  and  limits  of  rule  and 
aiguing  it  inapplicable  there  because  the  meaning  of  act  was  plain;  State 
V.  Wrighton,  56  N.  J.  L.  206,  208,  28  Atl.  64,  holding  rule  inapplicable 
where  statute  clear;  Egnew  v.  Cochrane,  2  Head,  332,  where  no  evidence 
of  usage  appeared  in  record,  and  usage  relied  ux>on  to  overcome  statute 
was  by  those  interested  in  evading  it. 

Effect  given  by  courts  to  contemporaneous  practical  Constitution  of 
unambiguous  statute.    Note,  10  Ann.  Oas.  52,  53. 

Appointment  to  office  as  executive  or  legislative  function.    Note,  13 
Am.  St.  Bep.  145. 

Removal  of  crin^inal  causes  into  Federal  courts  from  State  or  other 
Federal  courts.    Note,  53  L.  R.  A.  568. 

1  Cr.  300-318,  2  L.  Ed.  118,  HAMILTON  ▼.  BUSSEIiZk 

Sale  of  personalty  without  transfer  of  pooseasion  Is  firandulent,  per  se,  not 
merely  preeumptiyely  so. 

In  Federal  courts  foregoing  rule  is  applied  in  Meeker  v.  Wilson,  1  Gall. 
423,  Fed.  Cas.  9392,  holding  attempted  assignment  void;  Moore  v.  Ring- 
gold, 3  Cr.  C.  C.  434,  Fed,  Cas.  9773,  in  instruction  to  jury  that  sale  of 
horse  is  void  without  delivery;  Hamilton  v.  Franklin,  4  Cr.  C.  C.  730, 
Fed.  Cas.  5981,  sale  of  slave  invalid  on  this  ground;  Durham  v.  Ashton, 
8  Fed.  Cas.  130,  no  opinion  reported;  In  re  Hussman,  2  N.  B.  R.  437,  12 
Fed.  Cas.  1076,  denying  bankrupt's  discharge  for  such  fraudulent  sale; 
The  Romp,  01c.  203^  Fed.  Cas.  12,030,  respecting  a  mortgage  of  a  vessel; 
Wyoming 'etc.  Bank  v.  Dayton,  1  Wyo,  347,  holding  sale  of  certain  wood 
frauduleilt  because  no  change  of  possession.  The  rule  is  followed  in  Cali- 
fornia and  expressly  incorporated  into  its  statutory  law ;  Stevens  v.  Irwin, 
15  Oal.  506,  76  Am.  Sec.  502,  holding,  however,  that  rule  was  not  violated 


ICr.  309^18  /    NOTES  ON  U.  S.  REPORTS.  166 

if  at  a  snbsequent  time  the  vendor  was  given  custody  of  the  chattels  sold ; 
Woods  V.  Bugbey,  29  Cal.  476,  sale  of  kiln  of  bricks  held  fraudulent  for 
want  of  change  of  possession;  Bunting  v.  Saltz,  84  Cal.  172,  24  Pac.  1(38, 
declaring  sale  of  farming  implements  void  on  this  ground.  As  also,  in 
Colorado  by  statute:  Finding  v.  Hartman,  14  Colo.  599,  23  Pac.  1005,  dis- 
cussing, but  not  deciding,  point ;  Roberts  v.  Hawn,  20  Colo.  80,  36  Pac.  887, 
affirming  rule,  but  holding  transfer  after  execution  of  a  conditional  bill  of 
sale  and  before  levy  of  attachment  sufficient.  The  Florida  courts  have 
nominally  followed  Hamilton  v.  Russell,  but  assert  that  vendor's  cbntinued 
possession  is  merely  presumptive  fraud ;  Gibson  v.  Love,  4  Fla.  239 ;  Holli- 
day  v.  McEinney,  22  Fla.  165.  Followed  in  KeAtucky,  Dale  v.  Arnold, 
2  Bibb,  606,  holding  fraudulent  sale  of  slave  without  transfer;  Grimes  v. 
Davis,  1  Litt.  242,  a  similar  case;  Goldsbury  v.  May,  1  Litt.  256,  sale  of 
horse  held  fraudulent  on  this  ground;  Laughlin  v.  Ferguson,  6  Dana,  119, 
holding  sale  of  slaves  fraudulent  for  this  reason ;  Foster  v.  Grigsby,  1  Bush, 
98,  resting  decision  on  other  ground.  The  Missouri  courts  adopted  rule  in 
Sibly  V.  Hood,  3  Mo.  299,  applying  it  in  holding  such  sale  of  slaves  fraudu- 
lent even  though  conditional  and  not  absolute;  later  cases  departed^  from 
it,  but  by  act  of  1865,  it  was  practici^ly  restored;  Claflin  v.  Rosenber;c:, 
42  Mo.  448,  97  Am.  Dec.  3S8 ;  Pattison  v.  Letton,  56  Mo.  App.  331,  332,  333. 
It  is  adopted  by  statute  in  Montana:  Dodge  v.  Jones,  7  Mont.  141,  14  Pac. 
715,  holding  branding  of  horses  in  a  common  pasture  sufficient  transfer. 
The  New  Hampshire  court  follows  rule  with  slight  modification,  holding 
that  continued  possession  is  prima  facie,  and  if  unexplained,  conclusive 
evidence  of  fraud ;  Coburn  v.  Pickering,  3  N.  H.  425,  428,  14  Am.  Dec.  878, 
380 ;  Shaw  v.  Thompson,  43  N.  H.  132,  applying  rule  to  mortgage  of  person- 
alty; Putnam  v.  O^ood,  52  N.  H.  156,  reviewing  cases.  See,  however, 
Haven  v.  Low,  2  N.  H.  17,  9  Am.  Dec.  28.  Chancellor  Kent  practically 
indorsed  rule  in  Sturtevant  v.  Ballard,  9  Johns.  339,  6  Am.  Dec.  282,  con- 
ceding there  may  be  special  exceptions.  But  later  cases  and  act  of  1830 
established  modified  rule  making  presumption  concltsive  only  when  pos- 
session unexplained.  Hall  v.  Tuttle,  8  Wend.  388;  Stoddard  v.  Butler,  20 
Wend.  519,  533 ;  Cole  v.  White,  26  Wend.  520 ;  Hanf ord  v.  Artcher,  4  Hill, 
309.  In  North  Carolina  rule  is  followed  in  Gaither  v.  Mumford,  Tayl. 
167  (604,  605),  avoiding  bill  of  sale  of  slavei  though  with  some  doubt, 
afterward  it  was  denied:  Trotter  v.  Howard,  1  Hawks,  323,  9  Am.  Dec.  642; 
Smith  V.  Niel,  1  Hawks,  343.  Oregon  court  followed  rule  in  Monroe  v. 
Hussey,  1  Or.  190,  75  Am.  Dec.  553,  holding  mortp^age  in  form  of  absolute 
bill  of  sale  invalid.  Rule  followed  in  Clow  v.  Woods,  5  Serg.  ft  R.  284, 
287^  9  Am.  Dec.  354,  356,  avoiding  mortgage  on  this,  ground ;  Hower  v. 
Geesaman,  17  Serg.  &  R.  254,  annulling  deed  of  assignment;  Younig  v.  Mc* 
Clure,  2  Watts  &  S.  151,  holding  there  must  also  be  continued  change  of 
possession;  Milne  v.  penry,  40  Pa.  St.  358;  Stephens  v.  Gilford,  137  Pa. 
St.  229,  21  Am.  St.  Rep.  871,  20  Atl.  543,  reviewing  authorities  and  reaf- 
firming rule.  Followed  in  Ragan  v.  Kennedy,  1  Overt.  98,  100,  feut  denied 
in  later  case,  Callen  v.  Thompson,  3  Yerg.  476,  24  Am.  Dec.  588.  Vermont 
follows  rule  in  two  early  citing  cases,  Weeks  v.  Wead,  2  Aik.  68;  Fuller 
V.  Scars,  5  Vt.  531.    In  Virginia,  Hamilton  v.  Russell  rule  is  followed  and 


167  HAMILTON  v.  RUSSEUi.  1  Cr.  309-318 

applied  in  Fitzhagh  v.  Anderson,  2  Hen.  &  M.  302,  303,  8  Am.  Dec.  628, 
629 ,  Land  v.  Jeffries,  5  Rand.  606,  with  some  explanation  and  distinctions ; 
Glasscock  ▼.  Batton,  6  Rand.  83,  18  Am.  Dec.  706,  Clayton  v.  Anthony,  6 
Rand.  304,  affirming  rule  expressly;  Burchard  v.  Wright,  11  Leigh,  470, 
applying  role  by  analogy  in  (case  sustaining  executrix  sale  of  property  of 
legEtee  left  in  her  possession;  afterward  overthrown  in  Davis  v.  Turner,  4 
Gratt.  434,  460,  461,  462.  Cited  in  general  discussion  reviewing  cases, 
Huntley  v.  Eangman,  152  U.  S.  533,  38  L.  Ed.  543,  14  Sup.  Gt.  691,  uphold- 
ii^  deed  of  trust  preferring  certain  creditors ;  Howlan^  v.  Dews,  Charlt. 
(Ga.)  386,  ai^endo;  Ramsey  v.  Stevenson,  5  Mart.  (O.  S.)  23,  incident- 
ally; Irwin  V.  Wells,  1  Mo.  12,  in  general  discussion;  Hall  v.  Snowhill,  14 
N.  J.  L.  20,  in  general  discussion  holding  such  sale  good  between  parties ; 
Hudnal  v.  Wilder,  4  McCord,  297,  17  Am.  D^c.  746 ,  Salmon  v.  Clagett,  3 
Bland  Ch.  172,  holding  such  mortgage  good  between  parties;  Halbert  ▼. 
Grant,  4  T.  B.  Mon.  587,  avoiding  a  conveyance  from  father  to  son.  Ap> 
proved  in  Bender  v.  Kingman,  64  Neb.  770,  90  N.  W.  888,  upholding  direc- 
tion of  verdict  in  case  of  fraudulent  intent;  Horton  v.  Bamford,  79  N.  J. 
Eq.  379,  81  ^^tl.  771,  applying  rule  to  transfer  of  stock  by  bankrupt  to  ex- 
tent of  inadequacy  of  consideration;  Morrison  ▼.  Marker,  93  Fed.  696, 
arguendo. 

Criticised  in  Warner  v.  Norton,  20  How.  459,  460,  461,  16  L.  Ed.  963,  re- 
marking that  weight  of  authority  was  contra,  and  distinguished  on  g^und 
that  there  was  constructive  change  of  possession. 

Distinguished  in  Wilson  v.  Walrath,  103  Minn.  415,  24  L.  B.  A.  (N.  S.) 
1127,  115  N.  W.  204,  fraud  overcome  by  evidence  showing  good  faith  of 
vendee  purchasing  automobile;  United  States  v.  Hooe,  3  Cr.  89,  2  L.  Ed. 
875,  upholding  mortgage  to  secure  further  indebtedness  where  no  change 
of  xMMsession;  Etting  v.  Bank  of  United  States,  11  Wheat.  75,  6  L.  Ed. 
422;  Brooks  v.  Murbury,  11  Wheat.  81,  82,  6  L.  Ed.  424,  where  deed  of 
trust  to  secure  certain  creditors  was  upheld  although  donor  remained  in 
possession;  Merrill  v.  Dawson,  Hempst.  602,  Fed.  Cas.  469,  holding  posses- 
sion by  mortgagor  not  per  se  fraudulent ;  Howard  v.  Prince,  1  Hughes,  242, 
11  N.  B.  R.  326,  Fed.  Cas.  762,  on  ground  that  court  was  bound  by  local 
law  which  had  in  Davis  v.  Turner,  4  Gratt.  423,  abandoned  rule  of  prin- 
cipal ease;  Howe  Co.  v.  Clayboume,  6  Fed.  440,  on  ground  that  Michigan 
statute  made  fraud  question  of  fact;  Malone  v.  Hamilton,  Minor,  289,  on 
ground  that  it  was  there  not  an  absolute  conveyance  but  in  trust  merely.; 
Chinn  v.  Russell,  2  Blackf .  173,  where  goods  were  not  left  with  a  debtor 
vendor  but  with  another;  Watson  v.  Williams,  4  Blackf.  29,  28  Am.  Dec. 
39,  mortgagor's  continued  possession  of  the  chattels  may  be  explained  by 
evidence;  Greathouse  v.  Brown,  5  T.  B.  Mon.  282, 17  Am.  Dec.  68,  affirming 
general  rule  but  holding  it  inapplicable  where  purchase  was  at  public  auc- 
tion; dissenting  opinion  in  Yoder  v.  Standeford,  7  T.  B.  Mon.  510,  on  same 
ground;  Head  v.  Ward,  1  J.  J.  Marsh.  283,  holding  it  inapplicable  to  deed 
of  trust  of  realty;  Hundler  v.  Webb,  3  J.  J.  Marsh.  646,  20  Am.  Dec.  192, 
approving  rule  but  holding  it  inapplicable  to  conditional  sales;  Breck- 
enridge  ▼.  Anderson,  3  J.  J.  Marsh.  713,  714,  holding  it  inapplicable  to 
sales  under  process  of  .law;  Dawes  v.  Cope^  4  Binn.  265,  affirming  rule  but 

i 


1  Cr.  309-318 


NOTES  ON  U.  S.  REPORTS. 


168 


noting  exceptions  and  holding  constructive  delivery  sufficient;  Nelson  v. 
Good,  20  $.  C.  233,  holding  that  possession  may  be  explained;  Rose  v.  Bur- 
gess, 10  Leigh,  197,  upholding,  under  recording  law,  a  mortgage  without 
change  of  possession. 

Denied  in  Alabama,  adopting  rule  that  continued  possession  only  pre- 
sumptive fraud,  Hobbs  v.  Bibb,  2  Stew.  60,  61,  A3nres  v.  Moore,  2  Sfew. 

342,  343,  344 ,  Killough  v.  Steele,  1  Stew.  &  P.  273 ,  Blocker  v.  Burness,  2 
Ala.  356,  Planters'  Bank  v.  Borland,  C  Ala.  547;  Burroughs  v.  Stoddard, 
3  Conn.  434,  holding  it  question  of  fact  whether  leaving  of  attached  prop- 
erty in  defendant's  possession  made  it  fraudulent;  Swift  v.  Thompson,  9 
Conn.  68,  69,  21  Am.  Dec.  722,  723,  holding  it  question  of  fact;  Osborne  v. 
Tuller,  14  Conn.  539,  declaring  fraud  question  for  the  jury  but  under 
court's  direction;  Trotter  v.  toward,  1  Hawks,  323,  9  Am.  Doc.  642,  over- 
ruling Gaither  v.  Mumf ord,  Tayl.  167,  604,  605 ;  Smith  v.  Niel,  1  Hawks, 

343,  holding  fraud  a  question  for  the  jury;  Callen  v.  Thompson,  3  Yerg. 
476,424  Am.  Dec.  588  (overruling  Ragan  v.  Kennedy,  1  Overt.  98),  holding 
possession  may  be  explained;  Bryant  v.  Kelton,  1  Tex.  423,  reviewing  au- 
thorities at  length;  Davis  v.  Turner,  4  Gratt.-434,  460,  461,  4^,  reviewing 
and  analyzing  cases  at  length;  fpllowed  by  Howard  v.  Prince,  1  Hughes, 
242,  Fed.  Cas.  6762 ;  Bindley  v.  Martin,  28  W.  Va.  791,  after  a  very  elabor- 
ate review  and  collecting  of  cases,  and  remarking  increasing  tendency  to 
abandon  rule  of  the  principal  case.  Somewhat  criticised  in  New  Hamp- 
shire in  Haven  v.  Low,  2  N.  H.  17,  9  Am.  Dec.  28,  but  afterward  nominally 
followed.  In  New  Jersey,  Runyon  v.  Groshen,  12  N.  J.  Eq.  89,  inclines  to 
rule  of  prima  facie  presumption. 

Transfer  of  property  in  another  jurisdiction.    Note,  12  Am.  Dec.  470. 

Retention  of  possession  by  vendor  as  evidence  of  fraud.    Note,  14  Am. 
Dec.  309. 

Whether  presumption  of  fraud  flpwing  from  retention  of  chattel  by 
vendor  may  be  overcome.    Note,  24  L.  R.  A.  (N.  8.)  1183, 1143, 1144. 

Effect  on  legal  title  of  conveyance  in  fraud  of  creditors.    Note,  67 
L.  E.  A.  865,  894. 

Necessity  of  change  of  possession  on  sale  of  chattels.    Note,  5  E.  E.  0. 
40. 

Statute  of  ftands  of  Virginia  and  Bngliah  statute  np<»i  wMdi  it  is  based 
are  declaratory  of  common  law. 

Cited  in  Sumner  v.  Hicks,  2  Black,  534,  17  L.  Ed.  357,  collecting  au- 
thorities ;  Blackman  v.  Wheaton,  13  Minn.  330,  holding  similarly  as  to  Min- 
nesota statute ;  Rocheblave  v.  Potter,  1  Mo.  563,  14  Am.  Dec.  307,  deciding 
case  of  fraud  on  cdhmion-law  grounds;  Pattison  v.  Letton,  56  Mo.  App. 
331,  applying  rule  to  Missouri  statute;  Monroe  v.  Hussey,  1  Or.  190,  75 
Am.  Dec.  553,  Davis  v.  Bigler,  62  Pa.  St.  248,  1  Am.  Bep.  396,  Hudnal  v. 
Wilder,  4  McCord,  297,  17  Am.  Dec.  746,  following  rule  as  to  South  Caro- 
lina law ;  Meeker  v.  Wilson,  1  Gall.  423,  Fed  Cas.  9392 ,  Bean  v.  Smith,  2 
Mason,  276,  Fed.  Cas.  1174,  Hamilton  v.  Franklin,  4  Cr.  C.  C.  730,  Fed.  Cas. 
5981,  applying  rule  to  Maryland  statute;  Howland  v.  Dews,  Charlt.  (Ga.) 

I 


169  NOTES  ON  U.  S.  REPORTS.  1  Cr.  318-332 

386,  Miller  v.  Marckle,  21  IlL  153,  Beal  v.  Warren,  2  Gray,  46f,  Drake  ▼. 
Rice,  130  Mass.  413,  Piper  v.  Johnson,  12  Minn.  66,  Howe  ▼.  Waysmen,  12 
Mo.  172,  49  Am.  Dec.  128,  Brice  v.  Meyers,  5  Ohio,  123,  Clow  v.  Woods»  6 
Sei^.  &  R.  284,  287,  9  Am.  Dec.  354,  356,  Stephans  v.  Gifford,  137  Pa.  St. 
229,  21  Am.  St.  Rep.  871,  20  Atl.  543,  Weeks  v.  Wead,  2  Aik.  68 ,  United 
States  V.  Chnrch,  6  Utah,  543, 18  Pac.  38 ,  Gibson  v.  Love,  4  Fla.  239,  Gary 
V.  Jaeobson,  55  Miss.  206,  30  Am.  St.  Rep.  516,  Doolittl«  v.  Lyman,  44  N.  H. 
613,  Beckwith  v.  Burrough,  14  R.  I.  367,  51  Am.  Rep.  398,  Findley  v.  Cooley, 
1  Blackf.  263,  holding  fraudulent  deed  good  between  the  parties;  similarly 
in  Springer  v.  Drosh,  32  Ind.  490,  2  Am.  Rep.  360 ,  Webb  v.  Roff,  9  Ohio  St. 
434,  noting  contrary  doctrine  on  this  point;  Nellis  v.  Clark,  20  Wend.  30, 
approving  rule. 

Insbuctiona  upon  aSetraet  propositioiia  of  law,  not  relevMit  to  cause,  are 
properly  refosed. 

Cited  in  Halliday  v.  McDougall,  22  Wend.  273,  Lewis  v.  State,  4  Ohio, 
397,  remarking  further  that  to  refuse  proper  instructions  is  error;  Shep- 
herd v.  McQuilkin,  2  W.  Va.  100,  remarking  that  relevancy  must  affirma- 
tively appear;  King  v.  Kenny,  4  Ohio,  82;  Sterling  v.  Ripley,  3  Pinn.  163, 
collating  other  rules  and  eases;  Jones  v.  'Riurmond,  5  Tex.  329;  Proctor 
V.  Hart,  5  Fla.  467,  Dibble  v.  Truluck,  11  Fla.  140,  143,  holding  that  in- 
struction on  abstract  question,  if  misleading  to  jury,  is  error;  State  v. 
Chandler,  5  La.  Ann.  491,  52  Am.  Dec.  602;  Clarke  v.  Baker,  7  J.  J.  Marsh. 
197.     Cited  generally  Frisbie  v.  Timanus,  12  Fla.  543. 

Proper  subjects  of  instructions  to  juries  and  to  what  extent  judges 
may  comment  upon  evidence.    Note,  72  Am.  Dec.  540. 

Virginia  recording  ac^  does  not  comptebend  absolute  blUa  of  sale  so  that 
recording  ^vaUdates  ihem. 

Cited,  and  this  construction  of  similar  fCentucky  statute  adopted,  in 
Dale  V.  Arnold,  2  Bibb,  606. 

Right  to  impeach  settlement  of  property^  not  subject  to  execution* 
-Note,  12  E.  R.  C.  342. 

1  Or.  818-320,  2  L.  Ed.  121,  XTNITED  8TATE0  ▼.  HOOE. 

Appeal  ftom  Dkrtrlct  of  Columbia  Court  dismissed  for  waat  of  statement 
of  factein  transcript. 

Cited  in  Thompson  v.  Riggs,  5  Wall.  677,  18  L.  Ed.  707,  holding  that  in 
cases  appealed  from  Supreme  Court  of  District  of  Columbia  bill  of  ex- 
ceptions is  necessary;  and  to  same  effect  in  Stanton  v.  Embrey,  93  U.  S. 
555,  23  L.  Ed.  984;  United  States  v.  Wonson,  1  Gall.  8,  Fed.  Cas.  16,750, 
arguendo. 

1  Or.  321-4»2,  2  li.  Ed.  122,  HEPBURN  ▼.  AVU),  g.  c,  5  Cr.  262,  3  U  Ed.  96, 
1  Wheat.  184,  4  L.  Ed.  67. 

To  entitle  plaintiff  to  performance  he  must  diow  perf ormaxice  of  precedent 
acts  due  from  himself  or  acts  of  defendant  excusing  perf onuanoe. 


1  Cr.  332-343  KOTES  ON  U.  S.  REPORTS.  170 

Cited  lit  Morgan  v.  Morgan,  2  Wheat.  299,  4  L.  Ed.  244,  holding  speeifio 
performance  of  contract  for  sale  of  land  unenforceable  because  vendor 
could  not  give  good  title ;  Park  v.  Kelly  Co.,  49  Fed.  626,  6  U.  S.  App.  26, 
where  full  tender  of  performance  appeared;  Powell  v.  Dayton  R.  Co.,  14 
Or.  359, 12  Pac.  667,  holding  that  neither  party  to  contract  for  contempora- 
neous delivery  of  deed  and  payment  of  price  can  sue  without  showing 
performance  or  offer. 

Distinguished  in  dissenting  opinion  in  Rogers  v.  Saunders,  16  Me.  109. 

Tender  of  performance,  to  be  availing,  must  not  be  accompanied  by  un- 
aathorlzed  conditions. 

Approved  in  Dyer  v.  Muhlenberg  Co.,  117  Fed.  592,  holding  tender  in 
full  of  principal,  interest  and  costs  good  under  certain  compromise  agree- 
ment; Danciger  Bros.  v.  American  Express  Co.,  172  Mo.  App.  403,  158 
S.  W.  469,  carrier  contracting  to  return,  at  his  own  cost,  goods  unable  to 
deliver,  tenders  them  to  shipper  on  condition  of  release  from  liability  for 
nondelivery;  Wendell  v.  New  Hampshire  Bank,  9  N.  H.  413,  holding  tender 
insufficient,  because  made  conditional  ux>on  the  giving  of  an  assignment, 
not  required  by  the  contract. 

Distinguished  in  Skeels  v.  Blanchard,  85  Vt.  295,  81  At|l.  916,  where 
mortgagor  deeding  premises  to  mortgagee,  who  promised  to  reconvey  upon 
receipt  of  certain  sum,  tenders  sum  and  demands  quitclaim  deed,  tender 
not  conditional.  ' 

Sufficiency  and  effect  of  tender.    Note,  6  E,  R.  0.  696. 

1  Or.  332-342,  2  L.  Bd.  128^  BCABINB  IMBw  OO.  ▼.  TOXTKa. 

Assumpsit  will  not  lie  upon  insurance  policy  under  seal. 
Approved  in  Kinney  v.  McNabb,  44  App.  D.  C  344,  assumpsit  will  not 
lie  upon  unexecuted  sealed  instrument  in  Action  for  breach  of  promise; 
Eeffleman  v.  Pennington  Co.,  ^3  S.  D.^  165,  52  N.  W.  851,  holding  that  seal 
makes  an  instrument  specialty;  Fresh  v.  Gilson,  16  Pet.  335,  10  L.  Ed.  985, 
discussing  cases  where  assumpsit  will  lie  upon  agreement  substituted  for 
original  under  seal. 

1  Or.  343,  2  L.  Bd.  129,  ABEBCTBOMBIB  ▼.  DUPUI8. 

Citizentfiip  of  partiee   must  be   averred  where   jurlsdictioii  dependent 
thereon. 

Approved  in  Butterfield  v.  Miller,  195  Fed.  204,  115  C.  C.  A.  152,  refer- 
ence in  complaint  to  defendant  as  citizen  of  Indiana  is  sufficient  allegation 
of  nonresidence  of  Tennessee  to  give  Federal  court  jurisdiction  in  attach- 
ment; Kansas  City  etc.  Ry.  Co.  v.  Prunty,  133  Fed.  16,  66  C.  C.  A.  163, 
right  to  remote  to  Federal  court  on  ground  of  diverse  citizenship  not 
shown  by  mere  averment  of  residence;  North  River  Co.  v.  Hoffman,  5 
Johns.  Ch.  303,  Camp  v.  Wood,  10  Watts,  123,  Commissioner's  Court  v. 
Thompson,  18  Ala.  697,  Ingraham  v.  Arnold,  1  J.  J.  Marsh.  407,  and  Don'- 
aldson  v,  Hazen,  Hempst.  424,  425^  Fed.  Cas.  3984,  all  following  rule;  Brown 
V.  Keene,  8  Pet.  115,  8  L.  Ed.  885,  holding  that  the  averment  that  defend* 


\. 


171 


NOTES  ON  Ui  S.  REPORTS. 


1  Cr.  34a-365 


ant  is  "a  citizen  or  resident  of  Louisiana''  isinsu£Scient;  Marshall  V.  Balti- 
more &  Ohio  Co.,  16  How.  340,  14  Ii.  Ed.  964,  where  the  averment  that 
defendant  is  ^'a  body  corporate  under  an  act  of  Maryland"  is  held  suffi- 
cient by  a  majority  of  the  court,  bu<  Daniel,  J.,  dissenting,  cites  the  prin- 
cipal case;  Grace  v.  Amerfcan  Ins.  Ct>^  109  U.  S.  284,  27  L.  Ed.  936,  3  Sup. 
Ct.  211,  holds  that  ''doing  busines$  and  residing  in  New  York"  is  not 
sufficient  averment;  Sherman  v.  Aidams,  19  Blatchf.  316,  11  Fed.  852, 
description  of  plaintiff  as  "of  C.  in  the  State  of  Vermont"  is  held  insuffi- 
cient; Berlin  v.  Jones,  1  Woods,  639,  Fed.  Cas.  1343,  holds  ^that  alleging 
defendant  to  be  "a  citizen  of  the  Southern  District  of  Alabama"  is  equi- 
valent to  averring  that  he  is  a  citizen  of  Alabama;  Merchants'  Bank  v. 
Brown,  4  Woods,  264,  17  Fed.  161,  citizenship  of  defendant  not  averred, 
and  court  dismissed  case  on  that  ground;  Stephenson  v.  The  Francis,  21 
Fed.  718,  description  of  a  party  as  ''of"  a  certain  State  insufficient; 
Morrison  v.  Bennett,  1  McLean,  330^  Fed.  Cas.  9843,  failure  to  aver  citi- 
zenship of  one  defendant  ousted  jurisdiction  as  to  him;  Speigle  v.  Mere- 
dith, 4  Biss.  126,  Fed.  Cas.  13,227,  averment  that  citizenship  of  certain 
defendants  is  unknown  insufficient  excuse;  Prentiss  v.  Barton,  1  Brock. 
392,  Fed.  Cas.  11,384,  examining  .into  truth  of  allegations  as  to  citizenship; 
Dred  Scott  v.  Sandford,  19  How.' 473,  16  L.  Ed.  728,  arguendo;  Shaw  v. 
Quincy  etc.  Co.,  145  U.  S.  447,  36  L.  Ed.  770, 12  Sup.  Ct.  936 ,  United  States 
V.  Woolsey,  28  Fed.  Cas.  769,  remarking  that  rigor  of  rule  is  modified  in 
later  cases.  f 

Distinguished  in  Atchison  etc.  By.  Co.  v.  Phillip^  176  Fed.  665,  100 
C.  C.  A.  215,  in  action  by  widow  for  wrongful  death  of  husband,  juris- 
diction of  Federal  court  not  defeated  by  failure  to  all^^  citizenship  of 
formal  party  without  interest;  Allen  v.  Blunt,  1  Blatchf.  485,  Fed.  Cas. 
215,  holding  rule  inapplicable  to  patent  cases  because  jurisdiction  rests 
upon  the  snbjeet  matter. 

1  C^.  343-346,  2  I».  Ed.  190,  XJNIK>  ▼.  OABXmES. 
Debt  win  not  Ue  on  pcomlsBaiy  note. 

Cited  in  Olive  v.  Napier,  Cooke^  14,  20,  to  point  that  assumpsit,  not  debt, 
lies  by  indorsee  of  note- against  maker;  Butcher  v.  Hixton,  4  Leigh,  528, 
and  Mclver  v.  Moore,  1  Cr.  C*  C.  91,  Fed.  Cas.  8831,  holding  that  action 
of  debt  is  no  exception  to  rule  that  the  statute  of  limitations  must  be 
specially  pleaded. 

Release  of  indorser  of  n4>te  by  failure  to  enforce  liability  of  maker. 
Note,  18  L.  B.  A.  (N.  a)  540. 


1  Ot.  345^365,  2  Ii.  Ed.  180,  HODGSON  ▼.  DEZTEB. 

Contracts  made  by  public  agent  pursuant  to  his  duty  and  authoiity  bind 
goreniment  except  when  there  is  very  plain  intent  that  he  be  liable  personally. 
Approved  in  District  of  Columbia  v.  Camden  Iron  Works,  181  U.  S.  460, 
45  L.  Ed«  953,  21  Sup.  Ct.  683,  holding  where  contract  was  executed  as  and 
for  District  of  Columbia,  the  seals  of  the  commissioners  are  assumed  to 
be  affixed  as  seal  of  District;  Armour  v.  Roberts,  151  Fed.  852,  liability 


I 


I 


V 


1  Cr.  345-365  NOTES  ON  ti.  S.  REPORTS.  172 

to  refund  inheritance  taxes,  receiveij  from  bequests  not  taxable,  enforce- 
able against  tax  collector's  successbr  in  office;  Speir  v.  United  States, 
31  App.  D.  C.  482,  contract  betweeii  builder  and  board  of  commissioners 
of  soldiers'  home  to  erect  building  is  contract  with  United  States  though 
name  of  latter  inadvertently  omitted;  Rood  v.^Murray,  50  M6nt.  246,  146 
Pac.  .543,  state  superintendent  of  eotistruetion  entering  into  contract  for 
labor  and  superintendence  in  construction  of  State  building  is  not  liable 
personally;  McKagen  v.  Windham,  59  S.  C.  439,  38  S.  E.  4,  holding  com- 
plaint in  action  against  county  board  of  control  as  individuals  niust  allege 
that  members  intended  to  bind  themselves  as  individuals;  State  v.  McCau- 
ley,  15  Cal.  457,  State  prison  commiasibners  held  public  agents,  within  rule, 
and  not  liable  x>ersonally;  Adams  v.  Whittlese/,  3  Conn.  566,  also  one 
authorized  to  make  and  repair  highway  who  employed  assistants;  Perry 
V.  Hyde,  10  Conn.  338,  committee  to  build  a  bridge  for  a  town ;  Ogden  v. 
Raymond,  22  Conn.  385,'  58  Am.  Dec*  432,  school  trustees  in  employing 
teachers;  Hewitt  v.  Wheeler,  22  Conn.  562,  church  building  committee 
lin  contracting  for  church  edifice ;  Ghent  v.  Adams,  2  Ga.  218,  justices  of 
the  peace. in  contracting  for  courthouscf  no  clear  intent  to  bind  themselves 
appearing;  Perrin  v.  Lyman,  32  Ind.  18^  ?ainy  quartermaster  in  employing 
clerk;  Newman  v.  Sylyester,  42  Ind.  113,  municipal  common  coupcil  in 
contracting  street  improvements,  though  beyond  their  jurisdiction;  Brown 
.'V.  Austin,  1  Mass.  219,  congressional  commissioner  appointed  to  investigate 
a  contested  election.  Elsewhere  a  State  prison  warden  held  not  liable  for 
costs  because  a  public  agent.  .Bradford  v.  Rowe,  3  Pick.  18.  Hospital 
trustee  not  personally  chargeable  because  a  State  agent.  Dewey  v.  Gar- 
vey^  130  Mass.  87.  School  trustees  not: liable  even  though  their  contract 
did  not  bind  the  school  district.  Sanborn  v.  Neal,  4  Minn.  139,  77  Am. 
Dec.  505.  Auditor  of  public  accounts  not  bound  personally  on  written 
promise  to  pay  salary.  Copes  v.  Matthews,  10  Smedes  &  M.  402.  School 
trustees  not  liable  iipon  written  order  for  salary.  Tutt  v.  Hobbs,  17  Mo. 
489.  Surveyor-general  not  personally  liable  to  one  employed  to  make  sur- 
veys. Reed  v.  Conway,  26  Mo.  24.  County  judges  not  chai^able  upon 
county  interest  coupons  because  mere  pub£c  agents.  Hannibal  etc.  R.  R. 
v.  Marion  Co.,  36  Mo.  305.  Town  selectmaii  not  liable  because  their  prin- 
cipal bound.  Hanover  v.  Eaton,  3  N.  H.  39.  Similar  holding  as  to  sur- 
veyor of  highways.  Brown  v.  Rundleff,  15  N.  H.  363,  366.  Sheriff  not 
liable  upon  warranty  in  tax  deed.  Stevenson  v.  Weeks,  22  N.  H.  263. 
Overseers  of  poor  not  liable  in  contract  for  maintenance  of  paupers.  In- 
habitants V.  Colfax,  6  N.  J.  L.  118,  and  Olney  v.  Wickes,  18  Johns.  125, 
126.  A  township  committee  not  liable  upon  promissory  note,  approving 
rule  in  express  terms.  Knight  v.  Clark,  48  N.  J.  L.  74,  57  Am.  Rep.  535,  2 
Atl.  781.  Quartermaster-general  not  liable  on  contract  employing  laborers. 
Walker  v.  Swartwout,  12  Johns.  448,  449,  7  Am.  Dec.  336,  338.  Army 
captain  not  personally  liable  to  pay  reward  offered  by  him  for  capture 
of  deserters.  Belknap  v.  Rhinehart,  2  Wend.  377,  20  Am.  Dec.  622. 
County  magistrate  not  liable  upon  similar  offer.  Hite  v.  Goodman,  1 
Dev.  &  B.  Eq.  365.  County  commissioners  not  liable  upon  courthouse 
building  contract.    Dameron  v.  Irwin,  8  Ired.  423.    Parish  road  commis- 


I 

f 

I 


173  HODGSON  v.  PEXTER.  1  Cr.  345-365 

sioneiB  not  liable  in  contracting  for  a|biidge,  no  dear  intent  apx)earing 
to  bind  themselves.  Miller  v.  Ford,  4  kich.  385,  55 'Am.  Dec.  691.  Tax' 
collector  not  liable  upon  tax  deed  wasranty.  Gibson  v.  Mussey,  11  Vt. 
214.  Purchasing  agent  of  Confederate  army  not  liable.  Walker  v. 
Christian,  21  Gratt.  298.  Army  commiisaary-general  not  personally  liable 
in  buying  supplies.  Syme  v.  Butler,  1  dall,  116.  Executor  not  liable  per- 
sonally on  covenant  of  deed  although  lie  did  not  bind  testator's  estate. 
Thayer  v.  Wendell,  1  Gall.  40,  Fed.  Cas.  |l3y873.  Clerk  of  House  of  Repre- 
sentatives not  liable  in  contracting  for  Sprinting  of  statutes.  Garland  v. 
Davis,  4  How.  !I%8,  11  L.  Ed.  915.  Vilagd  officer  not  personally  bound 
by  his  order  upon  another.  Graves  v.  McWilliams,  1  Pinn.  493;  see,  also, 
1  Blackf.  242,  note.  The  principal  case  has  been  relied  on  in  holding  that 
government  auditor  could  not  be  garnisheed  as  to  government  clerk's 
salary.  Averill  v.  Tucker,  2  Cr.  C.  CJ  545,  Fed.  Cas.  670;  dissenting 
opinion  in  De  Bebian  v.  Gola,  64  Md.  273|  21  Atl.  279,  arguing  that  Italian 
consul  not  liable  qu  his  note  under  oons|ilar  seal.  The  doctrine  has  also 
had  another  application;  and  it  has  been!  hfeld  that  suit  brought  upon  the 
contract  of  a  public  agent  should  run  in  the  name  of  the  government  as 
plaintiff  and  not  the  agent.  Bainbridge  t-  Downie,  6  Mass.  257,  Balconibe 
V.  Northup,  9  Minn.  177.  Cited  in  general  discussion  in  Whiteside  v.  Jen- 
nings, 19  Ala.  789,  remarking  that  doctriile  is  to  liability  of  public  agents 
is  exception  to  general  rule;  Hovey  v.  M^giO,  2  Conn.  683,  689,  case  hold- 
ing a  certain  private  agent  not  liable;  Merchants'  Bank  v.  Central ' Bank, 
1  Ga.  429,  44  Am.  Dec.  668,  discussing  liability  of  corporate  agent.  Cited 
arguendo,  in  holding  congregational  society  bound  by  its  agent's  acts, 
Barlov^  v.  Congregational  Society,  8  Allen,  463  $  Stone  v.  Wood,  7  Cow.  455, 
17  Am.  Dec.  531,  a  case  of  private  agent;  Commissioners  v.  Perry,  5  Ohio, 
64,  cited  generally;  Meyer  v.  Barker,  6  ^inn.  234,  holding  private  agent, 
liable;  Roberts  v.  Button,  14  Vt.  204,  fi'case  involving  private  agent's 
liability;  as  also,  Devendorf  v.  West  Virginia  etc.  Co.,  17  W.  Va.  158; 
Sheets  v.  Selden,  2  Wall.  187,  17  L.  Ed.  826,  holding  deed  executed  by 
Governor  and  auditor  sufficient  to  convey  Ic^nd  for  State ;  Bank  v.  Baldwin, 
1  Cliff.  523,  Fed.  Cas.  892,  a  case  of  private  agency;  Potts  v.  Lazarus,  2 
Car.  L.  Rep.  83  (180),  J  Bibb.  321.  To  point  that  if  agency  appears  in 
the  body  of  contract  form  of  signature  is  immaterial,  in  Ohio  etc.  R.  R. 
V.  Middleto^,  20  111.  637.  Cited,  but  not  in  point,  Rogers  v.  Omaha  Co., 
4  Neb.  57.  In  elaborate  discussion  of  liabilities  of  pNiblic  agents  in  Bel- 
knap V.  Schild,  161  U.  S.  17,  40  L.  Ed.  601,  ]6  Sup.  Ct.  445,  holding  gov- 
ernment agents  may  be  personally  sued  for  their  personal  infringement  of 
patent  rights. 

Distinguished  in  Dwinelle  v.  Henriquez,  1  Cal.  392,  holding  public  admin- 
istrator not  a  public  agent  but  personally  liable  for  attorney  fee ;  Sterling 
V.  Peet,  14  Conn.  252,  holding  ^town  warden  arid  burgesses  liable  because 
not  duly  authorizedi and  no  clear  intent  not  to  bind  themselves;  Yulee  v. 
Canova,  11  Fla.  47,  where  corporate  officer  was  held  personally  bound 
because  exceeding  his  authority  in  contracting  for  supplies;  Wilson  v. 
Fridenburg,  22  Fla.  151,  holding  executrix,  borrowing  money,  under  order 
of  court,  liable  because  order  was  invalid  and  she  not  a  public  agent; 


I 

^       i  /     • 

1  Cr.  365-46X  NOTES  OK  b.  S.  REPORTS.  174 

Clesveland  y.  Stewart,  3  Ght.  297  holding  academy  trustees  not  public 
agents;  Aven  v.  Beekom,  11  QtL  d  holding  administrator  liable  upon  his 
warranty  because  not  a  public  'aaent;  Gillaspie  v.  Wesson,  7  Port.  461, 
31  Am.  Dec.  719,  holding  brigad^r-general  of  militia  had  no  power  to 
bind  United  States  for  horses  bought;  Bank  v.  Sanders,  3  A.  K.  Marsh. 
185,  13  Am.  Dec.  159,  where  a  cliar  intent  to  bind  public  agent  did  ap- 
pear; Stinchfield  v.  little,  1  Me.  £34,  19  Am.  Dec.  66,  as  inapplicable  to 
private  corporate  agents;  Sumnen  v.  Williams,  8  Mass.  185,  212,  6  Am. 
Dec.  95,  holding  administrator  oi  insolvent  estate  liable  on  covenant  in 
deed;  Simonds  v.  Heard,  23  Pico.  124,  34  Am.  Dec.  42,  on  ground  that 
contract  was  for  a  municipal  •co|*poration  and  defendants  bound  them- 
selves personally;  McClenticks  vi  Bryant,  1  Mo.  600,  14  Am.  Dec.  312, 
holding  town  commissioners  liablei  because  they  had  exceeded  their  author- 
ity ;  Underbill  v.  Gibson,  2  N.  H.  }55,  356,  9  Am.  Dec.  84,  86,  holding  town 
selectmen  liable  for  same  reason  ;!Waldron  v.  Tuttle,  4  N.  H.  150,  holding 
one  procuring  warrant  of  arrest  |to  be  issued  and  pron^sing  to  pay  con- 
stable for  serving  it,  liable  beoai^e  not  a  public  agent;  Sheffield  v.  Wat- 
son, 3  Gaines;  73  (but  see  Walkeri  v.  Swartwout,  12  Johns.  448,  449,  7  Am. 
Dec.  836,  838),  doubting  rule  aiid  holding  public  agents  to  have  bound 
themselves  personally;  Gill  v.  Btown,  12  Johns.  388,  holding  that  intent 
appeared  to  bind*  agents  personally;  Providence  v.  Miller,  11  R.  I.  278, 
23  Am.  Rep.  457,  on  ground  tha^  agent  of  city  contracted  personally  and 
bound  himself;  Ives  v.  Hulet,  12  Vt.  319,  334,  overseers  of  poor  hold  liable 
because  by  their  default  publio  wtere  not. 

r 

1  Or.  366-866^  2  L.  Bd.  137,  X<ZiOYt>  ▼.  AUSZANDEB.  . 

If  citation  not  served  thirty  diays,  court  will  not  take  up  case  until  thirty 
days  expire,  unless  defendant  appear.  i 

Cited  in  National  Bank  v.  Bank  of  Com.,  99  U.  S.  609,  25  L.  Ed.  362, 
holding  statute  means  that  defendant  shall  have  at  least  thirty  days' 
notice  before  hearing,  and  not  that  citation  shall  be  served  thirty  days 
before  return  day;  Knight  v.  Weiskopf,  21  Fla.  162,  holding  citation  iip- 
properly  served ;  Sammis  v.  Wightman,  25  Fla.  554,  6  South.  175,  arguendo. 

Distinguished  in  Welsh  v.  Mandeville,  5  Cr.  321,  3  L.  Ed.  114,  holding 
that  principal  case  did  not  decide  that  court  would  take  up  case  at  the 
end  of  thirty  days  without  defendant's  consent. 

Practice   and   procedure   governing   transfer   of   causes   to   Federal 
Supreme  Court  for  review.    Note,  66  L.  B.  A.  846,  853. 

A  citation  not  served  la  a  nullity. 
,   Followed  in  Vallabolos  v.  United  States,  6  How.  90,  12  L.  Ed.  856,  hold- 
ing appeal  taken  without  a  citation,  a  nullity;  Kitchen  v.  Randolph,  S6 
TJ.  S.  87,  23  L.  Ed.  810,  citation  is  essential  to  validity  of  writ. 

1  Or.  367-461,  AFPEMBIZ  A. 

(An  opinion  by  Cranch,  J.,  in  Dunlop  v.  Silver,  1  Cr.  C.  C.  27,  Fed.  Cas. 
4169;  contra  to  Mandeville  v.  Riddle,  1  Cr.  290-299,  2  L.  Ed.  112,  supra.) 


175  APPENDIX  B.  ICr.  462-466 

Cited  in  22  Blatchf.  60;  19  Fed.  303;  5  Ala.  574;  5  Conn.  24;  5  Conn. 
75,  IS  Am.  Dec  40;  29  Me.  225;  4  N.  J.  L.  356;  4  Wend.  497;  12  Rich. 
528,  531,  78  Am.  Dec.  472,  476;  2  Overt.  268;  2  Yerg.  44;  59  Vt.  339,  10 
Atl.  634. 

Approved  in  Kilbourn^  v.  Wiley,  124  Mich.  375,  83  N.  W.  101,  holding 
attorney  entitled  to  lien  on  land  for  fees  where  he  recovered  land  on 
eontingency.     m 

1  €t.  402-466^  APFBKDIZ  B. 

(Reporter's  note  to  Lindo  v.  Gardner,  1  Cr.  343-345,  2  L.  Ed.  180.) 
Cited  in  3  J.  J.  Marsh.  367;  6  R.  I.  26;  4  Leigh,  528;  Cooke  (Tenn.),  14, 
20;  2  Cr.  C.  C,  7U;  Fed.  Cas.  17,791.        ' 


\ 


/ 


\ 


NOTES 

ON  THB 

UNITED  STATES  REPORTS 

n  CBANCH. 


2  Ot.  0,  2  Ii.  Ed.  191,  WOOD  ▼.  WAONOK.  . 

Where  jurisdiction  depends  upon  dlyerse  dtisensbip,  aveirment  that  one 
paity  is  ''of  tbe  State  of  Oeorgta**  is  insofflcient. 

Approved  in  Brown  v.  Keene,  8  Pet.  116,  8  L.  Ed.  887,  holdinjj  insuffi- 
cient an  averment  that  defendant  id  resident  of  Louisiana,  having  fixed 
and  permanent  residence  in  St.  Charles  Parish;  McNutt  v.  Bland,  2  How 
21,  11  L.  Ed.  164,  where  fact  that  parties  are  citizens  of  same  State  held 
not  to  oust  jurisdiction,  provided  party  for  whose  use  suit  is  brought  is 
citizen  of  another  State ;  dissenting  opinion'  in  Marshall  v.  B.  &  0,  R.  R. 
Co.,  16  How.  340,  14  L.  Ed.  964,  majority  holding  sufficient,  averment  that 
'defendants  are  a  body  corporate,  created  by  the  l^^latnre  of  Mary- 
land"; Dred  Scott  v.  Sandford,  19  How.  473,  15  L.  Ed.  728,  holding  free 
n^ro  not  to  be  a  citizen  within  meaning  of  Constitution;  Grace  v.  Insur- 
t  anee  Co.,  109  U.  S.  285,  27  L.  Ed^  935,  3  Sup.  Ct.  211,  holding  insufficient, 
averment  that  plaintiffs  I 'are  of  the  county  of  Kings  and  State  of  New 
York";  Brown  v.  Noyes,  2  Wood.  &  M.  79,  Fed.  Cas.  2023,  where  court 
held  to  have  prima  facie  jurisdiction  if  parties  are  alleged  to  be  citizens 
of  different  States;  Parkhurst  v.  Kinsman,  3  Wood,  to  M.  174,  Fed.  Cas. 
10,761,  holding  averment  that  party  is  ''commorant"  in  a  State,  insuffi- 
cient; Allen  V.  Blunt,  1  Blatchf.  485,  Fed.  Cas.  215,  where  jurisdiction  of 
court  depended  upon  service  of  subpoena  in  district,  and  jurisdiction 
denied,  such  service  not  appearing  affirmatively  on  the  record ;  Sherman  v. 
Windsor  etc.  Co.,  19  Blatchf.  315, 11  Fed.  852,  holding  averment  of  citizen- 
ship insufficient;  Prentiss  v.  Barton's  Exr.,  1  Brock.  392,  Fed.  Cas.  11,384, 
holding  further  that  person  does  not  renounce  citizenship  by  reason  of 
absence  from  State  for  purpose  of  business;  Berlin  v.  Jones,  1  Woods, 
639,  Fed.  Cas.  1343,  holding  averment  that  party  is  a  citizen  of  Southern 
District  of  Alabama^  equivalent  to  averment  that  he  is  citizen  of  State  of 
Alabama;  Merchants'  Bank  v.  Brown,  4  Woods,  264,  17  Fed.  161,  as  to 
petition  for  removal  of  cause;  Speigle  v.  Meredith,  4  Biss.  126,  Fed.  Cas. 
13,227,  holding  insufficient,  averment  that  residence  of  defendants  is  un- 
known; Stephenson  v.  The  FraYicis,  21  Fed.  718,  dismissing  libel  and  hold- 
ing description  of  chartcrei-s  as  bcinj;  *'of  the  city  of  New  York,"  not 

I— la  (177) 


2Cr.&-33  NOTES  ON  U.  S.  REPORTS.    '  178 

sufficient  aveiment  of  residence  to  establish  maritime  lien;  United  States 
V.  Woolsey,  28  Fed.  Gas.  769,  holding  further  that  defect  mdy  be  taken 
advantage  of  by  demurrer;  Commissioners  Court  of  Talladega  Co.  v. 
Thompson,  18  Ala.  697,  holding  that  in  order  to  establish  jurisdiction  of 
County  Court  of  roads  it  must  appear  affirmatively  that  road  is  within 
county;  Ingraham  t.  Arnold,  1  J.  J.  Marsh.  407,  holding  that  where  juris- 
diction limited,  necessary  facts  must  be  averred  in  declaration;  Jim  v. 
State,  3  Mo.  163,  holding  further  as  to  means  of  taking  advantage  of  de- 
fect; North  River  Steaml^oat  Co.  v.  Hoffman,  5  Johns..  Ch.  303,  denying 
petition  for  removal  where  some  of  the  parti/^,  plaintiffis  and  defendants 
respectively,  were  citizens  of  same  State;  Donaldson  v.  Hazen,  Hempst. 
424,  Fed.  Cas.  3984,  discussing  general  subject.  i 

Miscellaneous.  Cited  in  Robinso^  v.  Peru  Plow  etc  Co.,  1  OkL  1#,  31 
Pac.  990,  consent  cannot  give  jurisdiction. 

2  Or.  9^10,  2  li.  Sd.  191,  jrTLLLAMB  y.  LTLBa 

Error  in  ipecitals  of  sums  in  forthcoming  bond  does  not  invalidate  bond 
where  wbole  gum  for  v/hich.  bond  w«a  given  was  amount  of  debt  and  costs  of 
execution.  , 

Approved  in  Holt  v.  Lynch,  18  W.  Va.  671,  holding  that  where  recital 
sets  forth  lai^r  sumjkhan  is  due,  it  is  not  such  variance  as  will  invalidate 
bond,  but  judgment  should  be  given  for  amount  actually  due. 

2  Or.  10-33,  2  Ik  Ed.  191,  FAW  ▼.  SaEABSTEIXBR. 

Contxact  for  paynMQt  of  distinct  soms  at  dliferent  times  is  of  nature  of 
distinct  contracts;  debt  lies  for  eacb  as  it  becomes  due. 

Cited  in  Davis  v.  Preston,  6  Ala.  85,  as  to  contract  to  pay  certain  sum 
for  services  in  semi-annual  installments;  Broumel' v.  Rayner,  68.  Md.  50, 
11  Atl.  834,  holding  that  where  contract  provides  for  paving  certain 
streets,  waiver  as  to  some  streets  does  not  impair  obligation  as  to  others. 

Distinguished  in  dissenting  opinion  in  Hutchinson  v.  New  York  Sc 
Pennsylvania  Co.,  269  Fed.  515,  majority  holding  logging  contract  with 
requirement  to,  cut  certain  quantity  each  year  and  pay  for  logs  as  cut  not 
severable. 

Parol  eivldence  i«  Inadwriwible  to  contradict  twms  of  deed. 
Approved  in  Warner  v.  Brinton^  29  Fed.  Cas.  238,  holding  void  will  con- 
taining patent  ambiguity;  Ratliff  v.  Ellis,  2  Iowa,  63,  63  Am.  Dec.  473, 
holding  parol  evidence  inadmissible  to  change  absolute  deed  into  trust 
deed,  in  absence  of  fraud,  accident  or  mistake. 

Explicit  provisions  in  statute,  comprehending  in  terms  whole  class  not 
restrained  by  applying  implication  from  subsequent  Y'ords,  unless  Imi^llcation 
clear. 

Apixroved  in  McGrew  v.  Missouri  Pac.  Ry.  Co.,  230  Mo.  524,  132  S,  W. 
1084,  short-haul  rule  incorporated  in  Missouri  Constitution  not  restricted 
by  implication  in  subsequent  section  that  leg^lature  is  to  prevent  only 


179  FAW  V.  MARSTELLER.  2  Cr.  10-33 

imjast  diseriiniiiations ;  National  Bank  v.  City  of  St.  Joseph,  24  Blatchf. 
440,  31  Fed.  218,  constroing  statute  providing  for  issue  of  bonds  h^  city; 
United  States  v.  Debs,  64  Fed.  749,  where  expression  "in  restraint  of 
trade"  held  to  extend  not  only  to  combination  in  form  of  trusts,  but  also 
to  eombinations  of  labor;  Bartlett  v.  Morris,  9  Port.  268,  where  statute 
authorizing  alien  to  inherit  such  estates  as  she,  might  have  inherited  had 
she  not  been  an  alien,  held  not  to  have  removed  alien  ancestor's  disability 
to  transmit  property  to  her;  Mangham  v.  Cox,  29  Ala.  88,  holding  liability, 
under  statute  providing  against  transjMrtation  of  slave  without  master's 
■written  consent,  to. extend  to  such  act  committed  unintentionally;  Siming- 
ton  V.  State,  5  Ind.  484,  interpreting  act  prescribing  jurisdiction  of  courts ; 
Leonard  v.  Wiseman,  31  Md.  205,  construing  act  providing  for  bounty  to 
volunteers  and  enlisted  men,  holding  it  to  repeal  prior  statute  so  far  as 
inconsistent;  Jim  v.  State,  3  Mo.  167,  as  to  construction  generally;  Cham- 
berlain V.  Western  Transportation  Co.,  44  N.  Y.  311,  4  Am.  Rep.  686, 
holding  exemption  of  carrier  from  liability  for  loss  by  fire  of  "any  goods 
or  merchandise  whatsoever,"  to  extenM  to  baggage  of  passengers;  Stiles 
V.  Murphy,  4  Ohio,  97,  construing  statute  prescribing  effect  of  judgment  yss 
lien ;  in  Walden  v.  Lane,  1  Overt.  75,  as  to  statute  limiting  jurisdiction  of 
Justices'  Courts. 

Wliere  case  tfio?ni  to  be  out  of  spirit  of  law,  letter  of  statute  will  not  be 
deemed  to  exclude  another  construction. 

Approved  in  Jim  v.  State,  3  Mo.  170,  construing  statute  providing  for 
change  of  venue  on  ground  of  interest  of  judge;  Ayers  v.  Lawrence,  59 
K.  Y.  199,  holding  that  under  act  for  '^  protection  of  taxpayers  against 
wrongful  acts  of  public  officers  or  agents,"  action  lay  to  prevent  unauthor* 
ized  act  by  special  commissioner. 

Obligation  of  contract  to  pay  "current  money*'  is  satisfied  by  payment  of 
tiist  wbich  law  recognises  as  mcmey  wben  payment  due. 

Approved  in  Legal  Tender  Cases,  12  Wall.  548,  20  L.  Ed.  311,  upholding 
power  of  Congr^s  to  make  United  States  notes  legal  tender;  but  distin- 
guished in  dissenting  opinion  in  Herbert  v.  Eaton,  4^  Ala.  553,  holding, 
however,  that  true  criterion  is  value  of  property  at  date  of  sale;  so  also 
in  Bozeman  v.  Rose's  Exrs.,  51  Ala.  325;  Higgins  v.  Bear  River  Mining 
Co.,  27  Cal.  161,  but  holding  further  as  to  effect  of  agreement  to  pay  in 
particular  kind  of  money;  dissenting  opinion  in  Hepburn  v.  Griswold,  2 
Duv.  (Ky.)  72,  majority  holding  legal  tender  acts  unconstitutional^,  Howe 
V.  Nickerson,  14  Allen,  402,  where  court  refused  to  enforce  specific  per- 
formance of  award  to  pay  certain  number  of  dollars  ''in  gold";  applied 
in  George  v.  Concord,  45  N.  H.  448,  under  similar  facts.  Cited  in  Metro- 
politan Bank  v;  Van  Dyck,  27  N.  Y.  454,  as  to  satisfaction  of  mortgage ; 
L^al  Tender  Cases,  52  Pa.  St.  70,  where  rent  payable  iu  ''lawful  silver 
money"  held  satisfied  by  payment  in  treasury  notes;  Dearing's  Admx.  v. 
Rucker,  18  Gratt.  450,  as  to  note  taken  in  lieu  of  payment  in  Confederate 
currency.  Criticised  in  dissenting  opinion,  Legal  Tender  Cases,  12  Wall. 
661,  20  Ii.  £d.  348,  majority  upholding  power  of  Congress  to  make  United 
States  notes  legal  tender. 


/ 


i  Cr.  33-64  NOTES  ON  U.  S.  REPORTS.  180 

2  Or.  S3,  2  L.  Bd.  198,  OOLS  ▼.  LER 

« 

Oofat  can  conaidflr  only  queettons  upon  "wliicli  Judges  Mbw  divided  In 
opinion. 

Approved  in  Ward  v.  Chamberlain,  2  Black,  434,  17  L.  Ed.  828,  refusing 
to  consider  irregularities  in  proceedings  below;  dissenting  opinion  in  Dow 
V.  Johnson,  100  U.  S.  173,  25  L.  Ed.  637,  majority  holding  that  Circuit 
Court  could  take  cognizance  of  certificate  of  division  4n  a  case  not  within 
its  jurisdiction,  in  first  instance;  State  v.  Crocker,  5  Wyo.  398,  40  Pac. 
684,  holding  that  although  questions  may  be  reserved  before  judgment, 
hearing  of  them  upon  certificate  is  within  appellate  jurisdiction  of  higher  • 
court. 

By  determination  of  questional  parties  are  not  precluded  from  bringing 
writ  of  eirer  on  final  Judgment  below. 

Approved  in  Daniels  v.  Railroad  Co.,  3  Wall.  255,  18  L.  Ed.  225,  dis- 
missing action  for  want  of  jurisdiction,  certificate  havipg  brought  up  whole 
case,  both  fact  and  law,  although  by  single  points^;  Bpgg  v.  City  of  Detroit, 
5>Mi<^h.  70,  holding  that  it  is  no  objection  to  jurisdiction  that  whole  matter 
may  be  again  brought  up  on  appeal. 

Interlocutory  decree  may  be  reversed  by  court  at  any  time.  , 
Cited  in  Griffin  v.  Oman,  9  Fla.  47,  as  to  decree  directing  reference  for 
purpose  of  ascertaining  material  facts;  Deickhart  v.  Rutgers,  45  Mo.  136, 
as  to  decree  directing  payment  of  sum  to  be  ascertained  by  referee;  dis- 
senting opinion  in  County  of  Cook  v.  Canal  Co.,  131  IlL  519,  23  N.  E. 
632,  majority  holding  that  after  term  has  expired,  court  has  no  authority 
at  subsequent  term  to  set  aside  decree  granting  new  trial. 

2  Or.  83-64,  Ii.  Ed.  199,  PENNIKOTON  y.  COZE. 

Every  part  of  an  act  must  be  considered  to  discover  intent  of  legislature. 

This  rule  has  been  applied  in  the  following  cases,  construing  various 
statutes :  United  States  v.  Freeman,  3  How.  565,  11  L.  Ed.  728 ;  dissenting: 
opinion  in  Hendenion's  Distilled  Spirits,  14  Wall.  68,  20  L.  Ed.  820; 
Arthur  v.  Lahey,  96  IJ.  S.  117,  24  L.  Ed.  767;  Wilson  v.  Rousseau,  1 
Blatchf.  84,  Fe^.  Cas.  17,832;  In  re  Jayne,  28  Fed.  424;  Cross  v.  See- 
berger  30  Fed.  428;  Van  Patten  v.  Chicago  etc.  Ry.  Co.,  81  Fed.  547; 
Eslava's  Heirs  v.  Boiling,  22  Ala.  736;  State  ex  rel.  v.  Commissioners,  20 
Fla.  432;  Akin  v.  Freeman,  49  Ga.  54;  Lyles  v.  Barnes,  40  Miss.  609; 
Lamed  v.  Corley,  43  Miss.  695 ;  New  Orleans  J.  &  G.  N.  Ry.  Co.  v.  Evans, 
49  Miss.  788 ;  Jim  v.  State,  3  Mo.  167,  170 ;  State  v.  Delesdenier,  7  Tex. 
106. 

Approved  in  In  re  Lands  of  Fi^-e  Civilized  Tribes,  199  Fed.  824.  Sup- 
plemental agreement  of  1902  construed  to  give  Choctaw  and  Chickasaw 
freedmen  homestead  protected  by  same  restrictions  attaching  to  homestead 
of  members  of  tribes;  United  States  v.  Baltimore  et<i.  R.  Co.,  159  Fed.  37, 
86  C.  C.  A.  223,  statute  tegulating  time  of  confining  stock  in  cars  without 
linloading,  with  proviso  for  extending  time  upon  consent  of  owner  of  ship- 
ment, construed  to  allow  penalty  for  each  shipment;  Louisiana  v.  American 


/ 


\ 

181  MURRAY  V.  THE  CHARMING  BETSEY.        2  Cr.  64r-126 

etc.  Refining  Co.,  108  La.  635,  32  South.  978,  holding  sugar  refiner  is 
manufacturer,  and  as  such  exempt  from  license  taxation  under  Constitu- 
tion; Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  178  U.  S.  94,  44  L.  Ed. 
889,  20  ^up.  Ct.  690,  arguendo. 

2  Cr.  64-126,  2  I..  Bd.  206,  MUBBAY  r.  THB  CHABMINO  BETSEY. 

Act  of  Congress  norer  coostraed^to  violate  law  of  natlcms,  If  any  other 
pooilble  construction  remaiiuk 

Cited  in  Waltham  Watch  Co.  v.  Keene,  202  Fed.  242,  patent  laws  not 
construed  to  give  owner  of  patent  right  to  fix  price  for  resale  of  patented 
article  by  dealers,  in  violation  of  public  policy;  opinion  rendered  by  Apple- 
ton  4ind  Kent,  JJ.,  to  House  of  Representatives,  declaring  **  personal 
liberty  acts"  constitutional  (46  Me.  687;  Ex  parte  Blumer,  27  Tex.  740), 
holding  foreigners  not  domiciled  in  Confederate  States  not  liable  to  enroll- 
ment under  conscript  laws. 

Vessel  and  cargo  belonging  to  one,  who,  thougb  born  in  the  TTnlted  States, 
was  resident  of  Danish  island,  and  had  taken  oath  of  aUeglance  tp  Idng  of 
Denmazk,  is  not  liable  to  forfeiture  under  act  suspending  Intercourse  with 
France. . 

Cited  in  Sands  v.  Knox,  3  Cr.  503,  2  L.  Ed.  512,  holding  that  noninter- 
eourse  act  imposed  no  liability  upon  United  States  vessels  sold  bona  fide 
to  foreigners,  while  act  in  force;  United  States  v.  Wong  Kim  Ark,  169 
U.  S.  658,  42  L.  Ed.  894,  18  Sup.  Ct.  460,  holding  child  bom  of  Chinese 
parents  resident  in  this  country,  to  be  citizen-  within  meaning  of  Fourteenth 
Amendment;  Comitis  v.  Parkerson,  56  Fed.  558,  holding  a9tual  removal 
from  country  and  acquisition  of  domicile  elsewhere  to  be  condition  prece- 
dent to  expatriation;  Schooner  Amado  and  Cargo,  1  Newb.  407,  Fed.  Cas. 
12,005,  holdinpdiable  to  forfeiture  vessel  owned  by  Frenchman  domiciled 
in  Mexico,  with  which  country  United  States  was  at  war ;  dissenting 
opinion  in  AmgB;  v.  Smith,  1  Litt.  (Ky.)  341,  majority  holding  free  negro 
not  citizen  by  reason  of  birth  in  this  country;  Lyndon  v.  Danville,  28  Vt. 
816,  hol4ing  that  alien  born  does  not  have  settlement  in  State  which  his 
father  had,  if  before  birth  of  child,  fattier  removed  into  foreign  jurisdic- 
tion and  did  not  return.  Cited  in  general  discussion  of  subject  in  The 
Mary  and  Susan,  1  Wheat.  55,  4  L.  Ed.  35;  United  States  v.  One  Hundred 
and  Fifty-nine  Packages,  27  Fed.  Cas.  286,  290. 

Probable  cause'  for  seizure. 

Approved  in  The  Panama,  176  U.  S.  544,  547,^4  L.  Ed.  581,  582,  20 
Sup.  Ct.  484,  hol(iing  mail  steamer  carrying  guns  and  ammunition  liable 
to  capture  as  prize ;  The  George,  1  Mason,  27,  Fed.  Cas.  5328,  holding  suifi- 
cient  circumstances  which  warrant  reasonable  suspicion  of  illegal  conduct; 
Burke  v.  Trevitt,  1  Mason,  102,  Fed.  Cas.  2163,  where  officer  of  revenue, 
seizing  vessel  under  probable  cause,  held  liable  only  for  ordinary  neglect. 
The  Ship  La  Manche,  2  Sprague,  224,  Fed.  Cas.  8004,  holding  probable 
cause  to  be  excuse,  although  vessel  acted  involuntarily,  and  was  misled 
by  mistakes   of   revenue   officei:8   of   captor's   government;    Williams   v. 


2Cr.l26  NOTES  ON  U.  S.  REPORTS.  182 

Delano,  165  Mass.  14,  28  N.  E.  1123,  holding  further  pendency  of  libel 
for  forfeiture  of  vessel  to  he  bar  to  action  of  conversion  a^nst  captor; 
The  Marianna  Flora,  3  Mason,  123,  Fed.  Cas.  9080,  and  Shattuok  v.  Malley, 
1  Wash.  247,  Fed.  Cas.  12,714,  both  arguendo. 

Meaaure  of  damages  for  illegal  seizure. 

Approved  in  Manro  v.  Almeida,  10  Wheat.  486,  6  L.  Ed.  872,  holing- 
further  that  damages  are  decreed  against  person  of  libelant;  The  Scotland, 
105  U.  S.  36,  26  L.  Ed.  1005,  holding  that  if  cargo  has  no  market  value 
in  place  of  shipment,  measure  is  price  at  port  of  destination  with  fair 
deduction  for  profits  and  charges ;  The  Schooner  Lively  and  Cargo,  1  Gall. 
322,  Fed.  Cas.  8403,  holdings  supposed  loss  of  cargo  not  to  be  item  of 
damages;  Dyer  v.  National  etc.  Co.,  14  Blatchf.  489,  Fed.  Cas.  4225,  and 
in  the  Mary  J.  Vaughn,  2  Ben.  50,  Fed.  Gas.  9217,  ruling  similarly  in  ac- 
tion for  damages  for  loss  cf  vessel  in  collision;  Pacific  Ins.  Co.  ▼.  Conrad^ 

1  Bald.  143,  Fed.  Cas.  10,647,  sustaining  right  of  holder  of  goods  on  re- 
spondentia bond,  to  recover  for  illegal  seizure;  The  Propeller  Galatea,  6 
Ben.  262,  Fed.  Cas.  5185,  holding  report  of  commission  to  assess  damages 
should  state  items  explicitly;  The  Aleppo,  7  Ben.  125,  Fed.  Cas.  158,  hold- 
ing that  where  contract  price  of  cargo  included  expenses  for  drayage, 
charges  for  brokerage,  and  commissions  and  consul's  certificates,  they 
should  be  allowed  as  part  of  prime  cost.  Cited  approvingly  in  discussion 
of  general  subject  in  Malley  v.  Shattuck,  3  Cr.  489,  2  L.  Ed.  508. 

Interest  on  sum  allowed  as  damages.    Note,  18  L.  R.  A.  458. 
Interest  on  unliquidated  damages.    Note,  28  L.  R.  A.  (N*  8.)  9.    ' 

Defect  appaxent  on  face  of  report  iiwewiing  damage  ia  not  cured  by  fall- 
lire  of  party  to  except  to  It. 

Cited  to  same  effect  in  Whitehead  v.  Perie,  15  Tex.  15,  as  ta  aeeovat  of 
auditor,  which  failed  to  state  items  as  required  by  statute. 

Duty  of  conquering  with  respect  to  obligations  of  conqueied  State. 
Note,.  5  B.  R.  0.  907. 

Miscellaneous.  Cited  in  Price  y.  Thornton,  10  Mo.  138,  on  point  that 
owners  of  vessel  are  liable  for  tortious  acts  of  master,  unless  they  are 
acts  of  piracy;  erroneously  in  Turley  v.  Dreyfus,  33  La.  Ann.  887, 

2  Cr.  126,  2  li.  Ed.  229,  OAFROK  ▼.  VAN  NOOBDEK. 

Oitlzensliip  of  plaintiff  In  Circolt  Court  must  be  clearly  shown. 

Approved  in  Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  177  U.  S. 
453,  44  L.  Ed.  844,  20  Sup.  Ct.  692,  holding  limited  partnership  not  a 
corporation  within  judiciary  act ;  Hill  v.  Walker,  167  Fed.  246,  92  C.  C.  A. 
633,  in  action  on  colitract  alleging  plaintiff  and  defendant  citizens  of 
different  States,  Federal  court  has  jurisdiction  unless  evidence  disproves 
.  it;  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  121,  66  C.  C.  A.  179,  Federal 
court  has  no  jurisdiction  of  suit  by  assignee  of  oral  contract  to  recover 
money  due  thereon  unless  record  shows  assignor  could  sue  therein;  Wahl 
V.  Franz,  100  Fed.  682,  holding  probate  o|f  will  is  not  within  jurisdiction 


183  CAPRON  V.  VAN  NOORDEN.  2  cA  126 

of  Circuit  Court;  Myers  v.  Berry,  3  Old.  618,  41  Pac.  682,  denying  equity 
jnrisdietion  over  petition  to  annul  action  of  townsite  trustees  in  disposing  ' 
of  lot  where  findings  on  which  action  based  and  allegations  of  fraud  are 
not  set  out;  litz  v.  Rowe,  117  Va.  759,  L.  R.  A.  1916B,  802,  court  must, 
of  its  own  motion,  deny  jurisdiction  in  all  cases  where  such  does  not 
affirmatively  appear  of  record;  Freer  v.  Davis,  52  W.  Va.  12,  13,  94  Am. 
St  Sep.  905,  906,  43  S.  E.  168,  169,  holding  appellant  not  estopped  on  ap-  y 

peal  to  attack  jurisdiction;  Whitworth  v.  Illinois  Cent.  R.  Co.,  107  Fed. 
560,  arguendo;  Brown  v.  Keene,  8  Pet.  116,  8  L.  Ed.  886,  holding  instiffi- 
eient  allegation  that  party  is  ''resident  of  Louisiana";  Bank  of  United 
States  V.  Moss,  6  How.  39,  12  L.  Ed.  835,  holding,  however,  that  where 
declaration  contains  special  and  common  counts,  apd  jurisdiction  is  not 
apparent  as  to  special  counts,  if  common  counts  are  sustained  court  will 
not  set  aside  jud^ent  unless  ohjection  made  during  trial ;  dissenting  opin- 
ion in  Marshall  v.  B.  &  0.  R.  R.  Co.,  16  How.  340,  14  L.  Ed.  964,  majority 
holding  sufficient,  averment  that  "defendants  are  a  body  corporate  created 
by  l^islature  of  Maryland";  Bors  v.  Preston,  111  U.  S.  263,  28  L.  Ed. 
422,  4  Sup.  Ct.  412,  holding  alienage  not  i^resumable  from  mere  fact  that 
party  is  consul  in  this  country  of  foreign  government;  Stuart  v.  Easton,  , 
156  U.  S.  47,  39  L.  Ed.  341,  15  Sup.  Ct.  268,  holding  insufficient,  alleo:ation 
that  plaintiff  is  "a  citizen  of  London,  England";  Brown  v.  Noyes,  2  Wood. 
&  M.  80,  Fed.  Cas.  2023,  where  court  held  to  have  prima  facie  jurisdiction 
where  diverse  citizenship  alleged;  Parkhurst  v.  Kinsman,  3  Wood.  &  M. 
174,  Fed.  Cas.  10,761,  holding  insufficient,  allegation  that  party  is  ''com- 
morant"  in  a  State;  Berlin  v.  Jones,  1  Woods,  639,  Fed.  Cas.  1343,  hold- 
ing averment  that  defendant  is  citizen  of  Southern  District  of  Alabama, 
equivalent  to  averment  that  he  is  citizen  of  State  of  Alabama;  Donaldson 
V.  Hazen^  Hempst.  424,  Fed.  Cas.  3984,  holding  further  that  the  record, 
must  show  one  of  parties  to  be  citizen  of  State  where  action  brought; 
Speigle  V.  Meredith,  4  Biss.  126,  Fed.  Cas.  13,227,  holding  insufficient  an 
averment  that  residence  of  some  of  defendants  is  unknown;  Fideliter  v. 
United  States,  1  Sawy.  156,  1  Abb.  (U.  S.)  579,  F^d.  Cas.  4755,  holding 
that  where  seizure  of  vessel  is  jurisdictional  fact,  it  must  be  alleged;  also 
in  Commissioners'  Court  v.  Thompson,  18  Ala.  697,  holding  that  in  order 
to  establish  jurisdiction  of  a  County  Court  of  roads,  it  must  appear 
afiBrmatively  that  road  is  within  county;  dissenting  opinion  in  Ex  parte 
Holman,  28  Iowa,  156,  majority  holding  that  mandamus  is  not  in  nature 
of  a  new  and  original  action,  but  ancillary  to  an  original  action ;  Ingraham 
V.  Arnold,  1  J.  J.  Mar3h.  407,  as  to  averment  of  jurisdictional  facts  where 
jurisdictipn  of  court  special  and  limited;  Beebe  v.  Armstrong,  11  Mart 
(0.  S.)  ^1-1,  as  to  averments  in  petition  for  removal  of  cause;  Klein  v. 
Pillsbury,  29  La.  Ann.  790,  applying  principle  \n  holding  that  where  stat- 
ute prescribes  form  of  warrant  any  other  form  is  of  no  effect ;  North  River 
Steamboat  Co.  v.  Hoffman,  5  Johns.  Ch.  303,  .holding  that  cause  cannot 
be  removed  to  Circuit  Court  where  some  of  parties,  plaintiffs  and  defend* 
ants  respectively,  are  citizens  of  same  State;  Myers  v.  Berry,  3  Okl.  618, 
41  Pfu:.  582,  holding  jurisdiction  of  subject  matter  is  determined  from  alle- 
gations.    The  principal  case  has  also  been  cited  in  the  following  cases  , 


\ 


2  Or!  126  NOTES  ON  U.  S.  REPORTS.  184 

discussing  the  general  subject :  Dred  Scott  v.  Sandf ord,  19  How.  402,  430, 
15  L.  Ed.  699,  711,  dissenting  opinion  in  Salisbury  v.  State,  6  Conn.  106, 
Wandling  v.  Straw,  25  W.  Va.  700. 

Plaintiff  may  assign  for  error,  want  of  Jurisdiction  of  court  in  which  he 
Instituted  suit. 

Approved  in  Intemationaretc.  R.  Co.  v.  Hoyle,  149  Fed.  182,  following 
rule;  Alexander  v.  CroUott,  199  U.  S.  581,  50  L.  Ed.  817,  26  Sup.  Ct.  161, 
New  Mexico  territorial  Supreme  Court  may  refuse  to  restrain  ju^ice  of 
peace  from  taking  further  proceedings  in  unlawful  detainer;  Wallace  v. 
Degree,  38  App.  D.  C.  148,  Ann.  Cas.  19130,  118,  dismissing  replevin  for 
want  of  jurisdiction  where  plaintiff  alleged  and  defendant  did  not  deny 
in  Justice's  Court  that  value  of  goods  not  more  than  three  hundred  dollars, 
consent  of  parties  not  giving  jurisdiction;  People  v.  Evans,  262  111.  238, 
104  N.  E.  647,  claimant  of  interest  in  land  not  made  party  to  suit  to  fore- 
close tax  lien,  may  attack  decree  directly  by  writ  of  error  for  want  of 
jurisdiction;  Litz  v.  Rowe,  117  Va.  760,  L.  R.  A.  1916B,  802,  plaintiff  may 
assign  as  error  want  of  jurisdiction  of  court  in  which  he  filed  suit  for  parti- 
tion of  real  estate;  Dred  Scott  v.  Sandford,  19  How.  473,  518,  ^66,  15 
L.  Ed.  729,  748,  768,  following  rule;  M.  C.  &  L.  M.  Ry.  Co.  v.  Swan,  111 
U.  S.  382,  383,  28  L.  Ed.  464,  4  Sup.  Ct.  ^11,  612 ;  where  plaintiff  alleged 
citizenship  of  defendant  as  unknown;  also  in  Mexican  etc.  R.  R.  Co.  v. 
Davidson,  157  U.  S.  208,  39  L.  Ed.  675,  15  Sup.  Ct.  565,  on  same  point; 
United  States  v.  New  Bedford  Bridge,  1  Wood.  &  M.  406,  Fed.  Cas.  15,867, 
holding  further  that  objection  may  be  made  at  any  time;  likewise  in  Van 
Antwerp  v.  Hubbard,  7  Blatchf .  441,  Fed.  Oas.  16,826 ,  Bobyshall  v.  Oppen- 
heimer,  4  Wash.  483,  Fed.  Cas.  1592,  holding  no  inference  in  favor  of 
jurisdiction  can  be  drawn  from  trial  and  judgment  of  cause;  so,  also,  in 
The  John  C.  Sweeney,  55  Fed.  541,  dismissing  libel  after  hearing  on 
merits;  Wabash  Ry-Co.  v.  Barbour,  73  Fed.  516,  43  U.  S.  App.  102,  as  to 
removal  to  court  lacking  jurisdiction ;  Hale  v.  Crowell's  Admx.,  2  Fla.  538, 
539,  50  Am.  Dec.  300,  803,  allowing  appeal  from  judgment  in  action  upon 
joint  contract,  against  one  defendant,  after  action  discontinued  as  to 
others;  Teal  v.  Russell,  2  Scam.  321,  holding  it  to  be  error  to  take  final 
judgment  against  parties  defaulting  in  action  against  several,  before  plea 
filed  by  others  disposed  of;  Jones  v.  Wight,  4  Scam.  339,  89  Am.  Dec.  418, 
as  to  plaintiff's  right  to  bring  error  when  judgment  rendered  in  his  favor, 
in  order  to  allow  him  to  commence  new  action;  Thayer  v.  Finley,  36  111. 
264,  where  entry  of  confession  of  judgment  without  consent  of,  plaintiff 
held  to  be  error;  Jordan  v.  Dennis,  7  Met.  590,  as  to  judgment  in  replevin 
rendered  in  Justice  Court;  Downing  v.  Still,  43  Mo.  318,  holding  void, 
judgment  rendered  by  court  lacking  jurisdiction;  also  in  Evans  v.  Ills,  7 
Ohio  St.  235,  and  Abrams  v.  Jones,  4  Wis.  808,  on  same  point.  Cited 
approvingly  in  Ricks  v.  Hall,  4  Port.  180,  Jim  v.  State,  3  Mo.  163,  168, 
discussing  subject  of  appeal  generally;  dissenting  opinion  in  Lincoln  etc. 
Min.  Co.  V,  District  Court,  7  N.  M.  530,  38  Pac.  594,  but  application  not 
apparent. 

Distinguished  in  Mercelis  v.  Wilson,  235  U.  S.  583,  59  L.  Ed.  371,  35 
Sup.  Ct.  150,  where  court  had  jurisdiction  of  subject  matter  and  parties 


\ 


186  HEAD  V.  PROVIDENCE  INSURANCE  CO.    2  Cr.  127-169 

complainants  cannot  assign  for  error  mling  they  invoked,  changing  bill 
for  injunction  to  prevent  trespass  into  proceeding  to  quiet  title ;  Blanchard 
V.  Neill,  83  N.  J.  £q.  446,  91  At^,  811,  complainant  receiving  less  relief 
than  demanded  is  aggrieved  by  judgment  and  may  sue  but  writ  of  error 
through'  judgment  in  his  favor ;  Monti  v.  Bishop,  3  Colo.  607,  where  appeal 
denied  defendant  in  equity  who  obtained  affirmative  relief  upon  answer 
praying  only  to  be  "hence  dismissed'';  Ward  v.  Bull,  1  Fla.  276,  refusing 
to  allow  appeal  where  error  one  of  fact. 

Right  of  party  to  review  judgment  in  his  favor.    Note,  3  ^Lnn.  Gas. 
610. 

Estoppel  of  party  invoking  jurisdiction  to  deny  it.    Note,  16  L.  B.  A. 
273. 

Right  of  invoking  party  to  raise,  on  appeal,  objection  of  lack  of  juris- 
diction.   Note,  L.  B.  A.  1916B,  804. 

2  Ot.  127-169,  2  K  Ed.  229,  HEAD  ▼.  PBOVIDEKCE  INSUBAKOE  CX>. 

Corporate  powers  axe  derived  from  charter  and  can  be  exercised  only  in 
maimer  autboilzed  by  it. 

Approved  in  Supreme  Council  of  the  Royal  Arcanum  v.  Green,  237 
U.  S.  543,  L.  B.  A.  1916A,  771,  59  L.  Ed.  1101,  35  .Sup.  Ct.  724,  in- 
crease of  assessment  rates  by  fraternal  association,  deriving  authority 
from  Massachusetts  charter  and  laws,  held  legal  in  Massachusetts,  ap- 
plies in  New  York;  Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  44,  44  L.  Ed. 
664,  20  Sup.  Ct.  624,  upholding  Texas  act  of  March  30,  1890,  prohibiting 
foreign  corporations  which  violated  act  from  .doing  business  in  State; 
Astoria  v.  American  La  France  Fire  Engine  Co.,  225  Fed.  23,  contract  of 
municipal  council  of  Astoria  for  purchase  of  fire  eng^ine  not  authorized  by 
ordinance,  as  required  by  charter,  is  void;  Seattle  Gas  etc.  Electric  Co.  v. 
Citizens'  Light  etc.  Power  Co.,  123  Fed.  691,  holding  New  Jersey  corpora- 
tion organized  under  general  corporation  laws  cannot  sell  gas  in  another 
State;  State  etc.  v.  Lashar,  71  Conn.  546,  42  Atl.  638,  holding,  under  char- 
ter provision,  election  of  commissioner  by  certain  municipal  board  was 
void;  Mason  v.  Mason,  160  Ind.  197,  65  N,  E.  588,  holding  where  decedent 
took  out  death  benefit  in  railroad  relief  society  in  favor  of  mother,  and 
after  marriage  surrendered  certificate  and  requested  issuance  of  new  cer- 
tificate of  differeift  class,*  in  favor  of  wife,  but  certificate  did  not  name 
beneficiary,  there  was  no  new  designation  of  beneficiary;  Silver  v.  Indiana 
StBie  Board,  35  Ind.  App.  459,  72  N.  E.  836,  construing  statutes  relating 
to  revision  of  school  books ;  Scott  v.  Bankers'  Union  of  the  World,  73  Kan. 
584,  85  Pac.  607,  fraternal  insurance  society  not  having  express  power 
under  charter  to  issue  promissory  notes  has  no  such  implied  power;  St. 
Louis  Police  etc.  Assn.  v.  Tierney,  116  Mo.  App.  460,  463,  91  S.  W.  971, 
972,  construing  mutual  police  association's  constitution  relative  to  designa- 
tion of  beneficiary  on  third  day  after  admission;  Paul  v.  Seattle,  40  Wash. 
330,  82  Pac.  604,  under  Seattle  Charter,  article  IV,  sections  27,  28,  fact  that 
benefit  of  irregularly  executed  contract  has  been  received  by  city  does 
not  estop  it  from  denying  liability  thereon ;  dissenting  opinion  in  Marshall 


2  Cr.  127-169  NOTES  ON  U.  S,  REPORTS.  ,        186 

etc.  Co.  V.  City  of  Nashville,  109  Tenn.  515^  71  S.  W.  820,  majority  holding 
ordinance  providing  that  all  city  printing  shall  bear  ni^ion  label  is  void, 
but  as  all  city  contracts  must  be  let  to  Ipwest  bidder,  contract  for  printing 
binding  on  city  though  work  did  not  bear  label;  United  States  Bank  v. 
Dandridge,  12  Wheat.  98,  101,  6  L.  Ed.  564,  565,  holding,  howe^^r,  that 
when  by-laws  provide  for  acceptance  of  cashier's  bond,  such  provision  is- 
merely  directory,  and  acceptance  not  a  condition  precedent  to  legal  per- 
formance of  duties ;  Bank  of  Augusta  v.  Earle,  13  Pet.  587,  10  L.  Ed.  307; 
holding  power  to  purchase  bills  of  exchange  includes  foreign  bills ;  Perrine 
V.  Chesapeake  etc.  Canal  Co.,  9  How.  184,  13  L.  Ed.  97,  where  power  to 
take  toll  for  commodities  held  not  to  include  power,  to  take  toll  for  vessel 
or  passengers;  Pearce  v.  Madison  etc.  R.  R.  Co.,  21  How.  444,  16  L.  Ed. 
,  185,  holding  power  to  do  all  necessary  to  construct  lines  does  not  include 
power  to  consolidate;  dissenting  opinion  in  Rogers  v.  City  of  Burlington, 

3  Wall.  669,  18  L.  Ed.  84,  as  to  power  of  municipal  corporation  to  borrow 
money;  Sumner  v.  Marcy,  3  Wood.  &  M.  112,  Fed.  Cas.  13,609,  holding 
powers  of  lumber  corporation  do  not  include  power  to  purchase  stock  in 

*  bank  for  purpose  of  securing  control;  Russell  v.  Topping,  5  McLean,  197, 

Fed.  Cas.  12,163,  as  to  powers  of  bank  to  hold  real  estate;  Alabama  etc. 
R.  R.  V.  Jones,  5  Bank.  Reg.  106,  1  Fed.  Cas.  278,  where  corporation  was 
not  authorized  to  carry  on  business  necessary  to  bring  it  within  bank- 
ruptcy act,  and  proceedings  dismissed;  Hitchcock  v.  City  of  Galveston, 
2  Woods,  286,  Fed.  Cas.  6532,  applying  principle  to  municipal  corporation 
in  exercise  of  powers  to  construct  and  repair  sidewalks;  Merrill  v.  Monti- 

'  cello,  138  U.  S.  687,  34  L.  Ed.  1075,  11  Sup.  Ct.  446,  construing  strictly 

section  in  municipal  charter  providing  method  of  issuing  bonds;  Pullan  v. 
Railroad  Co.,  4  Biss.  41,  Fed  Cas.  11,461,  holding  void  a  mortgage  of  cor- 

^   ^  porate  franchise,  power  to  execute  such  mortgage  not  being  inferable 

from  power  to  mortgs^e  "road,  income  and  other  property";  Laclede  Fire 
Brick  Co.  v.  Hartford  etq.  Ins.  Co.,  60  Fed.  368,  19  U.  S.  App.  610,  as  to 
manner  of  executing 'policies;  City  of  Superior  v.  Morton,  63  Fed.  359,  24 
U.  S.  App.  69,  construing  strictly  provision  in  municipal  charter  prescrib- 
ing mode  of  executing  contracts ;  Citizens'  Ry.  Co.  v.  City  Ry.  Co.,  64  Fed. 
654,  as  to  provision  in  charter  regarding  use  of  city  streets ;  First  National 
Bank  v.  Citizens'  Bank,  9  Fed.  Cas.  87,  holding  that  bank  authorized  to 
receive  deposits  generally  could  not  receive  special  deposit  in  nature  of 
wager  to  be  paid  to  one  of  two  persons  upon  certain  contingency;  State 
V.  Stebbins,  1  Stew.  307,  as  to  inability  of  corporation  to  exercise  of  bank- 
ing powers  in  absence  of  express  authorization;  State  v.  Mayor  etc.  of 
Mobile,  5  Port.  310,  30  Am.  Dec.  567,  where  power  to  regulate  width  of 
streets  generally  held  not  to  apply  to  street  whose  width  is  fixed  by 
charter;  Smith  v.  Insurance  Co.,  4  Ala.  561,  as  to  section  of  charter  pre- 
scribing method  of  investing  corporation  capital;  Ex  parte  Burnett,  30 
Ala.  465,  where  power  to  fix  price  of  liquor  licenses  held  not  to  authorize 
fixing  of  prohibitory  license;  City  of  Selma  v.  Mullen,  46  Ala.  414,  sus- 
taining power  of  city  to  contract  by  parol  where  manner  not  otherwise 
prescribed;  Lindauer  v.  Insurance  Co.,  13  Ark.  471,  holding  that  agree- 
ment to  cancel  policy  must  be  executed  in  same  manner  as  that  prescribed 
for  execution  of  policies;  Dunbar  v.  Alcalde  etc.  of  San  Francisco,  1  Cal. 


X 


187  HEAD  T.  PROVIDENCE  INSURANCE  CO.    2  Cr.  127-169 

356^  as  to  act  of  city  officers  in  destro3dng  building  to  arrest  progress  of 
fire;  Holland  v.  San  Francisco,  7  Cal.  375,  as  to  method  prescribed  for 
sale  of  city  property;  bat  see  also  McCracken  v.  San  Francisco,  16  Cal. 
619,  overraling  preceding  case  under  similar  facts;  Zottman  v.  San  Fran- 
ciseo,  20  Cal.  102,  81  Ai]^  Dec.  ].01,  construing  strictly,  provision  regulating 
method  of  awarding  contracts  for  public  improvements;  also  in  French, v. 
Teschemaker,  24  Cal.  550,  as  to  method  prescribed  for  investing  city  funds, 
citing  preceding  case ;  .Hartford  Bank  v.  Hart,  3  Day,  495,  as  to  power  of 
banking  corporation  to  discount  ^otes ;  Weston  v.  Estey,  22  Colo.  344,  45 
Pae.  370,  denying  power  of  bank  to  enter  into  contract  to  engage  in  min- 
ing; New  York  Firemen  Ins.  Co.  v.  Ely,  5  Conn.  568,  13  Am.  Dec.  101, 
holding  prohibition  in  charter  against  exercising  banking  powers  includes 
loaning  of  money ;  Thames  Mfg.  Co.  v.  Lathrop,  7  Conn.  556,  as  to  method 
of  assessing  taxes  prescribed  in  city  charter;  Berlin  v.  New  Britain,  9  Conn. 
180,  construing  strictly  limitations  on  city  power  to  regulate  streets;  dis- 
senting opinion  in  Philadelphia  Loan  Co.  v.  Towner,  13  Conn.  267,  majority 
holding  that  where,  under  statute,  contracts  tainted  with  usury  were  not 
absolutely  void,  charge  by  corporation  of  greater  interest  than  that  pre- 
scribed in  the  charter  did  not  render  contract  void;  dissenting  opinion  in 
Stamford  Bank  v.  Ferris,  17  Conn.  275,  majority  holding  transfer  of  stock 
to  cashier  in  his  own  name  effective  as  transfer  to  bank;  Couch  v.  Insur- 
ance Co.,  38  Conn.  187,  9  Am.  Bep.  379,  holding  further  as  to  inability  of 
coiTporation  to  waive  provisioiis  in  charter;  dissenting  opinion  in  Southern 
Ins.  A  Trust  Co.  v.  Lanier,  5  Fla.  171,  on  same  point;  American  Coloniza- 
tion Society  v.  Gartrell,  23  Qa.  452,  where  corporation  empowered  to 
reeeive  piroperty  for  the  pijirpose  of  colonizing  free  negroes,  held  not 
capable  of  takhig  slaves  under  a  will,  for  purpose  of  sending  them  to 
Africa;  Betts  v.  Menard,  Breese,  400,  denying  right  of  municipality  to 
grant  ferry  privileges  to  corporation,  charter  providing  for  grant  to  "per- 
son"; Metropolitan  Bank  v.  Godfrey,  23  111.  552,  as  to  right  of  banking 
corporation  to  hold  real  property  under  charter;  Doe  v.  Chunn,  1  Blackf. 
337,  holding  that  power  of  municipal  corporation  to  sell  land  for  delin- 
quent taxes  confers  no  power  to  execute  conveyance;  Leonard  v.  Insurance 
Co.,  97  Ind.  304,  construing  strictly  authorization  to  insure  unincumbered 
property;  Presbyterian  etc.  Fund  v.  Allen,  106  Ind.  596,  7  N.  E.  319,  where 
provisions  as  to  method  of  contracting  held  to  be  mandatory;  City  of 
Davenport  v.  Kelley,  7  Iowa,  106,  as  to  exercise  by  municipal  t^orporatioii 
of  powers  incidental  to  granted  powers;  Coles  v.  Insurance  Co.,  18  Iowa, 
429,  holding  that  insurance  corporation  cannot  be  sued  upon  policy  an- 
nulled pursuant  to  charter;  dissenting  opinion  in  Cook  v.  School  District, 
40  Iowa,  446,  majority  holding  defendant  liable  on  parol  contract  for  em- 
ployment of  teacher,  although  statute  provided  that  such  contracts  be  in 
writing;  Bank  of  United  States  v.  N^rvell,  2  A.  K.  Marsh.  102,  holding 
corporation  confined  to  charter  powers  in  suing  on  note ;  Breaux  v.  Parish 
of  Iberville,  23  La.  Ann.  236,  as  to  power  of  officers  to  bind  city  by  issuing 
notes;  Laycock  v.  City,  35  La.  Ann.  477,  denying  power  of  city  council  to 
ratify  unauthorized  contract  for  purchase  of  gas,  although  city  had  re- 
ceived benefit ;  dissenting  opinion  in  Bragdon  v.  Insurance  Co.,  42  Me.  267, 
majority  holding  that  custom  may  change  rule;  Weckler  v.  The  Bank,  42 


I 


\/ 


2  Cr.  127-169  NOTES  ON  U.  S.  REPORTS.  188 

4 

lid,  590,  20  Am.  Bot>.  101,  as  to  power  of  banking  corporation  to  sell  bonds 
on  commission;  Perry  v.  House  of  Refuge,  63  Md.  23,  52  Am.  Rep.  498, 
ruling  similarly  in  holding  corporation  not  liable  for  unauthorized  assault 
by  officers;  Mclntyre  v.  Ingraham,  35  Miss.  55,  where  power  to  assign 
notes  held  not  implied  from  general  power  to  hold  property;  Mobile  etc. 
R.  R.  Co.  V.  Franks,  41  Miss.  511,  holding  that  railroad  corporation  can- 
not limit  common-law  liability  as  carriers;  Plahto  v.  Insurance  Co.,  38 
Mo.  255,  holding  by-laws  to  govern  strictly  method  of  issuing  policies; 
Ruggles  ▼.  Collier,  43  Mo.  375,  as  to  provision  in  city  charter  prescribing 
method  of  regulating  street  paving;  Matthews  v.  Skinner,  62  Mo.  332, 
21  Am.  Bep.  427,  constnling  strictly  charter  provision  as  to  holding  of 
land ;  Lebcher  v.  Commissioners  etc.,  9  Mont.  320,  23  Pac.  714,  as  to  power 
of  county  to  regulate  mpde  of  caring  for  poor;  Trustees  of  Peaslee,  15 
N.  H.  331,  as  to  powers  of  trustees  of  charitable  corporation;  Bergen  v. 
Clarkson,  6  N.  J.  L.  364,  construing  strictly  provision  in  city  charter  regu- 
lating method  of  levying  taxes ;  Paxson  v.  Sweet,  13  N.  J.  L.  203,  as  to 
implied  powers  of  municipal  corporation ;  B^atty  v.  Insurance  Co.,  2  Johns. 
114,  3  Am»  Dec.  408,  •as  to  provision  regulating  method  of  paying  losses ; 
Hosack  V.  College  of  Physicians,  5  Wend.  552,  holding  corporation  incom- 
petent to  transact  business  on  days  other  than  those  specified  in  charter; 
Welland  Canal  Co.  v.  Hathaway,  8  Wend.  484,  24  Am.  Dec.  55,  holding 
corporation  not  estopped  to  deny  capacity  to  execute  unauthorized  con- 
tracts; Safford  v.  Wyckoff,  4  Hill,  448,  construing  statute  regulating 
method  of  issuing  bills  of  exchange  by  banks;  Bard  v.  Chamberlain,  3 
Sand.  Ch.  33,  holding  that  in  action  at  law,  corporation  must  allege 
powers;  see  also  dissenting  opinion  in  Curtis  v.  Leavitt,  15  N.  Y.  257,  270; 
Crocker  v.  Whitney,  71  N.  Y.  166,  construing  strictly  provision  in  national 
bank  act,  limiting  amount  of  real  estate  to  be  held  by  bank ;  State  v.  Rail- 
road Co.,  Busbee's  Law,  236,  holding  indictment  against  railroad  corpora- 
tion must  allege  powers  and  duties;  Commissioners  of  Gallia  County  v, 
Holcomb,  7  Ohio,  232,  as  to  right  of  municipal  corporation  to  bring  action 
not  among  those  authorized  by  charter;  Bank  of  Chillicothe  v.  Town  of 
Chillicothe,  7  Ohio  (pt.  H),  36,  80  Am.  Dec.  187,  where  power  to  effect 
public  improvements  held  to  include  power  to  borrow  money  necessaiy  for 
such  purpose;  Bank  of  Chillicothe  v.  Swayne,  8  Ohio,  287,  82  Am.  Dec. 
715,  holding  violation  of  prohibition  against  usurious  interest  renders 
contract  void ;  State  v.  Granville  etc.  Society,  11  Ohio,  12,  holding  express 
words  necessary  to  confer  banking  powers ;  Overmyer's  Lessee  v.  Williams, 
15  Ohio,  31,  as  to  power  of  railroad  corporation  to  hold  real  estate;  Straus 
V.  Insurance  Co.,  5  Ohio  St.  62,  as  to  limitations  on  investment  of  capital ; 
Vanatta  v.  The  Bank,  9  Ohio  St.  34,  as  to  method  prescribed  for  dis- 
counting notes ;  Weckerley  v.  Lutheran  Congregation,  3  RawllB,  181,  holding 
further  as  to  liability  of  a  corporation  for  acts  of  officers ;  Fowler  v.  Scully, 
72  Pa.  St.  461,  18  Am.  Rep.  702,  construing  section  of  national  currency 
act  prescribing  kind  of  securities  on  which  banks  might  loan;  Malone  v. 
Philadelphia,  147  Pa.  St.  420,  23  Atl.  629,  as  to  method  of  contracting  for 
public  improvements;  Boston  etc.  R.  R.  Co.  v.  New  York  etc.  R.  R.  Co., 
13  R.  I.  273,  holding  that  power  limited  to  performance  of  single  act  does 


/\ 


189  HEAD  V.  PROVIDENCE  INSURANCE  CO.    2  Cr.  127^169 


\ 


not  exist  after  performance,  of  act ;  Fergusoa  v.  Halsell,  47  Tex.  423^  hold- 
ing void  sale  of  county  property  at  private  sale,  where  statute  provided 
for  public  sale  at  auction  in  all  cases ;  Noel  v.  San  Antonio,  11  Tex.  Civ. 
App.  585,  33  S.  W.  266,  holding  bond  issue  invalid  where  provision  not 
made  for  payment  of  interest  as  required  by  statute;  Hardware  Co.  v. 
Manufacturing  Co.,  86  Tex.  150,  24  S.  W.  17,  holding  void,  deed  executed 
by  insolvent  corporation;  Whitney  v.  Bank,  50  Vt.  400,  28  Am.  Rep.  510, 
holding  that  national  bank  has  no  power  to  execute  contract  of  bailment,  '^ 
and  so  is  not  liable  for  loss  of  property;  Arnott  v.  Spokane,  6  Wash.  St. 
447,  33  Pac.  1065,  as  to  method  of  contracting  for  public  improvements; 
Pennsylvania  etc.^o.  v.  Board  of  Education,  20  W.  Va.  365,  and  Exchange 
Bank  v.  Lewis  County,  28  W.  Va.  287,  on  same  point;  Janesville  Bridge 
Co.  V.  Stoughton,  1  Pinn.  672,  holding  that  grant  of  power  to  erect  bridge 
is  not  exclusive  unless  so  expressed. 

The  principal  case -is  also  cited  in  the  following  oases  discussing  the 
general  subject:  Bank  of  United  States  v.  Dandridge,  12  Wheat.,  68, 
6  L-  Bd.  554;  Hartford  etc.  R.  R.  Co.  v.  Kennedy,  12  Conn.  508;  White  v. 
Howard,  38  Conn.  360;  Gifford  v.  Livingston,  2  Denio,  395;  Dousman  v. 
Milwaukee,  1  Pinn.  83;  Mackey  v.  Mackey,  29  Gratt.  168. 

Distinguished  in  Planters'  Bank  v.  Sharp,  6  How.  322,  12  L.  Ed.  456, 
holding  void  statute  prohibiting  bank  from  transferring  notes  by  indorse- 
ment, charter  having  empowered  bank  to  "hold  and  dispose  of"  property, 
real  and  personal  (but  see  dissenting  opinion,  p.  337,  12  L.  £d.  462); 
Hitchcock's  Admr.  v.  Bank,  7  Ala.  434,  where  lijnitation  as  to  rate  of 
interest  to  be  charged  in  State  of  incorporation,  held  not  to  apply  to  con- 
tract made  elsewhere;  Trimmier  v.  Bomar,  20  S*.  C.  362,  where  provisions 
regarding  manner  of  holding  elections  held  to  be  merely  directory;  Parker 
V.  Building  &  Loan  Assn.,  19  W.  Va.  759,  holding  that  where  association 
is  authorized  to  loan  to  members  only,  it  may  enforce  contract  against  one 
who  has  acted  as  member,  but  never  signed  Constitution. 

Modified  in  Campbell  v.  Mining  Co.,  51  Fed.  Rep.  4,  7,  holding  mere 
failure  to  exercise  powers  in  manner  prescribed  renders  acts  voidable 
only;  German  Iris.  Co.  v.  City  of  Manning,  78  Fed.  902,  holding  city  es- 
topped from  denying  validity  of  bonds  signed  by  officers  riot  authorized, 
in  absence  of  mandatory  requirement  as  to  signing;  likewise  in  Market 
Bank  v.  Smith,  16  Fed.  Cas.  758,  holding  that  charge  of  grater  interest 
than  amount  allowed  by  charter  does  not  avoid  entire  contrirot;  Wiley  v. 
Starbuck,  44  Ind.  310,  312,  holding  violation  of  provision  regulating,  rate  of 
interest  does  not  render  contract  entirely  void;  Sam)om  v.  Insurance  Co., 
16  Gray,  454,  77  Am.  Dec.  421,  holding  that  although  charter  requires 
policies  to  be  in  writing,  preliminary  insurance  may  be  effected  by  parol. 

Limited  in  Bulkley  v.  Derby,  2  Conn.  256,  where  usage  held  to  render 
valid  contracts  not  made  pursuant  to  charter;  so  also  in  Warren  v.  Insur- 
ance Co.,  16  Me.  449,  450,  451,  33  Am.  Dec.  678,  679,  680;  Barnes  v.  Bank, 
19  N.  Y.  163,  where  bank  held  liable  on  note,  although  not  executed  in 
accordance  with  banking  law;  Cincinnati  v.  Cameron,  33  Ohio  St.  363, 
holding  rule  not  to  apply  to  executed  contracts,  corporation  having  received 
benefit. 


2  Cr.  170-179  NOTES  ON  U.  S.  REPORTS.  190 

Qualified  in  St.  Joseph  ete.  Co.  y.  Globe  etc.  Co.,  156  Ind.  676,  59  N.  E, 
999,  upholding  oral  eontraet  of  corporation! 

Delivery  and  acceptance  o£  policies  of  insurance.    Note,  188  Am.  St. 
Rep.  ;89. 

Miscellaneous.  App^diz,  97  Me.  593,  opinion  of  Supreme  Court  to 
senate;  State  v.  School  Comm.,  94  Md.  345,  51  Atl.  291,  denying  right  of 
action  figainst  board  of  education  for  personal  injuries. 

2  0r.  170-179,  2  L.  Ed.  243,  LITTLE  r.  BABBEME. 

Ooniiniislon  of  illegal  acts  is  notJnstifLed  by  anthorisatiUm  or  oomnMknd 
of  superior. 

Approved  in  Philadelphia  Co.  v.  Stimson,  223  U.  S.  620,  66  L.  Ed.  576, 
32  Sup.  Ct.  340,  exemption  of  United  States  from  suit  does  not  preclude 
actioit  against  Secretary  of  War  wrongfully  invading  propertj'  rights  in 
fixing  harbor  limits;  McCreery  Engineering  Co.  v.  Massachusetts  Fan  Co., 
195  Fed.  507,  115  C.  C.  A.  408,  exemption  of  State  from  suit  does  not  pre- 
clude holding  county  commissioners  personally  liable  and  enjoining  inter- 
ference with  complainant's  property  rights  in  patent;  O'Reilly  De  Camara 
V.  Brooke,  135  Fed.  387,  military  Governor  of  Cuba  appointed  pursuant  to 
treaty  of  Paris  is  liable  for  dan^ages  caused  by  order  abolishing  franchise 
to  slaughter  cattle  in  Havana;  In  re  Cooper^  143  U.  S.  500,  36  L.  Ed.  241, 
12  Sup.  Ct.  459,  discussing  cases  on  general  subject;  Belknap  v.  Schild,  161 
U.  S.  18,  40  L.  Ed.  602,  16  Sup.  Ct.  445,  as  to  personal  liability  of  the 
officers  of  the  United  States  for  infringement  of  patent,  although  acting 
under  orders ;  Hendricks  v.  Gonzalez,  67  Fed.  353,  35  U.  S.  App.  127,  hold- 
ing collector  of  customs  not  justified  in  refusing  clearance  papers,  although 
acting  under  instructions  from  Secretary  of  Treasury  in  so  doing;  Averill 
V.  Tucker,  2  Cr.  C.  C.  545,  Fed.  Cas.  670,  holding  treasurer  of  United  States 
to  be  public  agent  and  not  liable  as  such  as  garnishee  of  employee  of  gov- 
ernment ;  United  States  v.  Bright,  24  Fed.  Cas.  1238,  holdihg  militia  officer 
liable  for  interfering  with  arrest  by  United  States  marshal,  although  act« 
ing  Under  orders  from  Governor;  Christian  County  Court  v.  Rankin,  2 
Denio,  504,  87  Am.  Dec.  507,  as  to  acts  of  Confederate  soldiers  in  destroy- 
ing public  building;  Hogue  v.  Penn,  3  Bush,  666,  96  Am.  Dec.  276,  holding 
officer  of  St fte  troops  liable  for  trespass  committed  under  orders ;  Burke  v. 
Trevitt,  1  Mason,  102,  Fed.  Cas.  2163,  discussing  general  subject;  United 
States  v.  One  Hundred  and  Twenty-nine  Packages,  27  Fed.  Cas.  278,  and 
Thaver  :v.  Hedges,  22  Ind.  302,  discussing  subject  of  incidental  powers  of 
Confess. 

Distinguished  in  The  Paquete  Habana,  189  U.  S.  465,  47  L.  Ed.  903,  23 
Sup.  Ct.  594,  .under  facts  decreeing  against  United  States  and  not  against 
captors  individually;  Garlan^/v.  Davis,  4  How.  149,  11  L.  Ed.  915,  holding 
public  agents  not  liable  on  contracts  made  for  principals  where  no  mis- 
feasance shown;  The  Marianna  Flora,  3  Mason,  123,  Fed.  Cas.  9080,  in 
proceedings  against  vessel,  seizure  having  been  lawful,  but  made  through 
mistake  of  fact;  Mandeville  v.  Cofopendorfer,  3  Cr.  C.  C.  400,  401,  Fad, 


\ 


191  NOTES  ON  U.  S.  REPOETS.  2  Cr.  180-239 

Cas.  9010,  refusing  to  extend  rule  to  i  negligent  act  of  agent  where  no  mis- 
feasance shown. 

Remedy  against  government  or  its  agents  for  infringement  of  patent^ 
rights.    Note,  15  Aim.  Gas.  1110. 

Miscellaneous.    Cited  erroneously  in  State  v.  Cardinas,  47  Tex.  290.      , 

2  Or.  180-185,  2  Lw  Ed.  246,  DUNLOP  Y.  BALL.    , 

Payment  presumed  from  lapse  of  time. 

Approved  in  Cobb  v.  Houston,  117  Mo.  App.  656,  94  S.  W.  302,  under  act 
providing  that  judgment  presumed  paid  after  twenty  years,  but  that  pre- 
suinption  may  be  repelled  by  written  aipknowledgment  or  proof  of  part  pay- 
ment, absence  from  state  does  not  prevent  running  of  time  in  favor  of 
presumption;  Lessee  of  Ransdale  v.  Grove,  4  McLean,  284,  Fed.  Cas.  11,570, 
holding  statute  of  limitations  does  not  run  against  nonresident  owners  of 
land  claimed  by  lapse  of  time;  Lynde  v.  Denison,  3  Conn.  392,  as  to  in- 
capacity of  feme  covert  to  sue  on  probate  bond;  Reddingtod  v.  Julian,  2 
Ind.  225,  holding  further,  presumption  is  rebuttable;  McLellan  v.  Crofton, 
6  Me.  334,  where  absence  from  country  and  poverty  of  debtor  held  not  to 
prevent  operation  of  statute  of  limitations;  Gxi^lick  v.  Loder,  13  N.  J.  L. 
(1  Green  L.)  73,  23  Am.  Dec.  714,  holding  further  as  to  pleading;  Thorpe 
V.  Corwin,  20  N.  J.  L.  318,  holding  further,  presumption  is  rebuttable ;  Long 
V.  Clegg,  94  N.  C.  768,  where  time  intervening  between  death  of  testator 
and  administration  of  estate,  held  to  be  period  of  disability;  dissenting 
opinion  in  Summerville  v.  Holliday,  1  Watts,  521,  on  point  that  question  of 
sufficiency  of  disability  is  to  be  determined  by  court  and  not  by  jury; 
Foulks  v.  Brown,  2  Watts,  215,  holding  that  death  of  feme  covert  l^atee, 
whose  husband  survived,  and  the  fact  that  her  estate  was  not  administered 
upon  are  not  such  facts  as  will  repel  presumption  of  payment  of  legacy; 
Ext.  of  Palmer  v.  Admr.  of  Dubois,  1  Mill  (S.  C.)  180,  holding  that  com- 
mencement of  suit  afterward  abandoned  did  not  affect  presumption;  Heirs 
of  Marr  v.  Gilliam,  1  Cold.  502,  discussing  general  subject. 

Distinguished  in  Boardman  v.  De  Forest,  5  Conn.  13,  where  discharge 
in  insolvency  held  not  to  create  disability  to  recover  on  judgment  rendered 
after  discharge;  Shubrick  v.  Adams,  20  S.  C.  56,  holding  currency  of  stat- 
ute of  limitations  not  interrupted  by  disability  intervening  after  right  of 
action  accrued. 

Miscellaneous.  Cited  in  Beverly  v.  Burke,  9  Ga.  447,  54  Am.  Dec.  856, 
on  point  that  question  of  adverse  possession  is  one  for  jury. 

2  Cr.  187-239,  2  L.  Bd.  249,  OinmCH  v.  HOBBABT. 

Seizure  of  vessel  for  attempt  at  illicit  trade  is  not  loss  witliin  policy  con- 
taining exception  of  risk  of  illicit  trade. 

Cited  in  Andrews  v.  Insurance  Co.,  3  Mason,  20,  Fed.  Cas.  374,  holding 
mere  proceeding  to  port  for  purpose  of  illicit  trade  to  be  within  such  ex- 
ception; Goicoechea  v.  Insurance  Co.,  6  Mart.  (N.  S.)  58,  17  AiL  Dec.  178, 


I 


/ 


2  Cr.  187-239  NOTES  ON  U.  S.  REPORTS.  192 

giving  effect  to  exeeption  of  illicit  trade,  notwithstanding  declaration  in 
policy  that  goods  belong  to  country  at  war  with  that  to  which  Vessel  is 
bound. 

I 

Seizure  nnut  b«  Jostiflable  in  order  to  come  within  exception  of  risk  of 
ilUdt  trade. 

Cited  in  Carrington  v.  Insurance  Co.,  8  Pet.  617,  618,  623,  8  L.  Ed.  1029, 
1031,  holding, '  however,  that  there  need  not  be  justifiable  cause  for  con- 
demnation; Graham  v.  InsAranCe  Co.,  2  Wash.  120,  Fed.  Cas.  6674,  holding 
that  circumstances  of  seizure  and  illicit  trade  must  concur;  Higginson  v. 
Pomeroy,  11  Mass.  109,  112,  holding  further  that  terms  of  prohibitory  law 
govern  construction  of  excepting  clause;  Francis  v.  Insurance  Co.,  6  Cow. 
424,  427,  holding  burden  of  proof  on  insurance  company  to  show  seizure 
authorized ;  Smith  v.  Insurance  Co.,  3  Serg.  &  R.  84,  holding  seizure  result- 
ing from  ignorance  of  prohibition  not  within  exception;  Fandel  v.  Insur- 
ance Co.,  4  Serg.  &  R.  69,  holding  that  ta  bring  seizure  within  exception 
it  must  appear  in  sentence  that  goods  were  condemned  for  violation  of  pro- 
hibition ;  Thompson  v.  Insurance  Co.,  2  La.  238,  discussing  general  subject 
and  defining  "illicit  trade."  , 

■ 

Iiimit  of  joxladiction  on  high  seas  is  not  fixed,  but  extends  at  least  to 
distance  of  "cannon  shot." 

Cited  in  The  Brig  Ann,  1  Gall.  63,  Fed.  Cas.  397,  construing  embargo 
f^ct ;  The  Kodiak,  63  Fed.  128,  where  jurisdiction  held  to  extend  over  waters 
-between  headlands  of  an  inlet ;  The  Alexander,  60  Fed.  918,  to  same  effect ; 
The  Coquitlam,  67  Fed.  710,  716,  where  jurisdiction  held  to  extend  thirty 
miles  from  coast;  CucuUu  v.  Insurance  Co.,  6  Mart.  (N.  S.)  481,  482,  16 
Am.  Dec.  207,  208,  and  Francis  v.  Insurance  Co.,  6  Cow.  426,  under  facts 
similar  to  principal  case;  Mahler  v.  Norwich,  36  N.  Y.  366,  as  to  jurisdic- 
tion of  State  court  over  case  of  collision  in  sound,  included  within  limits 
of  State ;  United  |H;ates  v.  New  Bedford  Bridge,  1  Wood.  &  M.  488,  Fed. 
Cas,  16,867,  discussing  general  subject. 

Seizure   of   vessels   outside   territorial   jurisdiction  for  violation   of 
municipal  law.    Note,  S  Ann.  Cas.  811. 

Jurisdiction  over  sea.    Note,  46  L.  R.  A.  266. 

Foreign  laws  and  judgments  must  be  proved  before  th^  can  be  received 
in  court  of  Jiistice. 

Approved  in  Nashua  Savings  Bank  v.  Anglo-American  Co.,  189  U.  S. 
228,  47  L.  Ed.  785,  23  Sup.  Ct.  617,  holding  British  statutes  governing 
stockholders'  liability  sufficiently  authenticated  by  testimony  of  English 
solicitor;  United  States  v.  Lew  Poy  Dew,  119  Fed.  789,  holding  United 
States  commissioner's  certificate  that  Chinese  had  right  to  remain  is  mere 
recital  of  judgment  rendered  at  hearing ;  Nashua  Sav.  Bank  v.  Anglo- Am. 
Land  Mort.  etc.  Co.,  108  Fed.  766,  holding  statutes  governing  stockholders' 
liability  suflBciently  authenticated  by  testimony  of  English  solicitor;  Win- 
ter V.  Latour,  36  App.  D.  C.  419,  priority  of  filing  of  patent  by  French  in- 
ventor not  lief  eated  by  contention  that  French  law  did  not  meet  require- 


193  CHURCH  V.  HUBBART.  2  Cr.  187-239 

ment  of  United  States  statute  when  French  law  not  in  evidence  nor  of 
record;  f^nnis  v.  Smith,  14  How.  427,  14  L.  Ed.  484,  holding  copy  of  La. 
Code  Civil  indorsed,  **Les  garde  des  Sceaux  de  France  a  la  Cour  Supreme 
des  Etats  Unis,"  competent  evidence  to  prove  rule  of  descent;  Hanley  v. 
Donoghne,  116  U.  S.  4,  29  L.  Ed.  536,  6  Sup.  Ct.  244,  holding  allegation  in 
declaration  as  to  effect  of  foreign  law,  to  be  allegation  of  fact  admitted  by 
demurrer;  Liverpool  etc.  Co.  v.  Insurance  Co.,  129  U.S.  445,  32  L.  Ed.  793, 
9  Sup.  Ct.  473,  as  to  carrier's  liability  under  contracts  made  in  Great 
Britain;  United  States  v.  Wilson,  1  Bald.  91,  Fed.  Cas.  16,730,  holding 
pardon  granted  by  Governor  of  State  under  great  seal  evidence  per  se  of 
fact  of  pardon ;  Edison  etc.~Co.  v.  Electric  etc.  Co.,  60  Fed.  403,  holding  in- 
admissible, certificate  of  grant  of  patent  by  Russian  government  in  absence 
of  signature  and  seal  of  superior  office  of  government ;  In  re  Metzger,  17 
Fed.  Cas.  237,  as  to  authentication  of  depositions;  Smith  v.  Zane,  4  Ala. 
104,  holding  admissible  as  evidence,  transcript  of  record  of  births  and  mar- 
riages signed  and  sealed  by  keeper  of  records  and  certified  to  be  true  copy ; 
McNeil  V.  Arnold,  17  Ark.  166,  as  to  proof  of  statutes  of  sister  States ; 
Griswold  V.  Pitcairn,  2  Conn.  90,  holding  admissible,  judgment  authenti- 
cated by  public  seal  of  Denmark ;  Dyer  v.  Smith,  12  Conn.  390,  as  to  stat- 
utes of  sister  States ;  State  v.  Crawford,  28  Fla.  492,  10  South.  124,  as  to 
importance  of  national  seal  in  authenticating  commissions;  Franklin  v. 
Twogood,  25  Iowa,  528,  96  Am.  Dec  78,  holding,  however,  that  one  State  is 
not  bound  by  construction  of  common-law  rule  by  another  State  as  to  con- 
tract made  in  latter;  Canne  v,  Sagory,  4  Mart.  (0.  S.)  87,  as  to  protest  of 
foreign  bills  of  exchange,  and  in  Las  Caygas  v.  Larionda's  Syndics.,  4  Mart. 
(0.  S.)  285,  on  same  point;  Woolsey  v.  Paulding,  9  Mart.  (0.  S.)  294,  as 
to  authentication  of  depositions ;  Isabella  v.  Pecot,  2  La.  Ann.  391,  holding 
that  unwritten  law  may  be  proved  by  parol  evidence;  Levy  v.  Merrill,  4 
Me.  190,  as  to  foreign  law  providing  for  arrest  of  debtor  on  civil  process; 
Corrie's  Case,  2  Bland  Ch.  508,  as  to  authentication  of  appointment  as 
sraardian ;  Kline  v.  Baker,  99  Mass.  255,  holding  further  that  when  evi- 
dence of  foreign  law  consists  entirely  of  judicial  opinion,  question  of  its 
construction  and  effect  is  for  the  court;  People  v.  Lambert,  5  Mich.  360,  72 
Am.  Dec.  61,  as  to  proof  of  statute  of  sister  States;  Gunn  v.  Peakes,  36 
Minn.  179, 1  Am.  St.  Rep.  662,  as  to  proof  of  foreign  judgments  generally; 
Martin  v.  Martin,  1  Smedes  &  M.  177,  as  to  laws  regulating  rate  of  in- 
terest; Stewart  v.  Swanzy,  23  Miss.  505,  as  to  authentication  of  will  exe- 
cuted in  another  State ;  Karr  v.  Jackson,  28  Mo.  318,  as  to  proof  of  record 
of  association  of  persons  for  purpose  of  establishing  bank;  Dunlap  v. 
Waldo,  6  N.  H.  453,  as  to  authentication  of  depositions;  Mahurin  v.  Bick- 
ford,  6  N.  H.  570,  as  to  proof  of  judgments  rendered  in  courts  of  sister 
States;  Beach  v.  Workman,  20  N.  H.  382,  holding  inadmissible,  a  gazette 
purporting  to  contain  copies  of  foreign  laws ;  Watson  v.  Walker,  23  N".  H. 
496,  holding  that  to  prove  unwritten  laws,  witness  must  have  special  knowl- 
edge of  them;  Pickard  v.  Bailey,  26  N.  H.  167,  and  Hali  v.  Costello,  48 
N.  H.  179,  2  Am.  Bep.  209,  holding  further  that  evidence  of  foreign  laws 
fihoold  be  addressed  to  court  and  not  to  jury;  Emery  v.  Berry,  28  N.  H. 

1—18 


2  Cr  ,187-239  NOTES  ON  U.  S.  REPORTS.  194 

485,  61  Am.  Dec.  626,  holding  that  statute  law  eannot  be  proved  by  parol 
evidence;  Hutchins  v.  Gerrish,  52  N.  H.  207,  13  Am.  Bep.  21,  where  record 
of  conviction  for  larceny,  improperly  authenticated,  held  inadmissible  as 
evidence  to  impeach  witness;  Francis  v.  Insurance  Co.,  6  Cow.  428,  429, 
as  to  laws  of  Great  Britain,  relating  to  seizures  for  illicit  trading;  Chan- 
oine  V.  Fowler,  3  Wend.  177,  holding  that  commercial  code  of  France  could 
not  be  proved  by  production  of  book  admitted  to  be  conformable  to  official 
edition  xmblished  by  government;  Hill  v.  Packard,  6  Wend.  389,  on  same 
point;  Lincoln  v.  Battelle,  6  Wend.  482,  holding  that  statute  law  cannot 
be  proved  by  parol  evidence;  Hosford  v.  Nichols,  1  Paige  Ch.  226,  as  to 
foreign  laws  relating  to  mortgages;  Dougherty  v.  Snyder,  16  Seig.  &  R. 
87,  16  Am.  Dec.  524,  holding  that  registered  edict  must  be  proved  by  copy 
properly  authenticated ;  Phillips  v.  Gregg,  10  Watts,  169,  36  Am.  Dec.  161, 
162,  affirming  principle  that  best  evidence  must  be  produced;  Phillips  v. 
Lyons,  1  Tex.  394,  holding  that  great  seal  of  State  affixed  to  record  does 
not  import  verity  per  se;  State  v.  Cardinas,  47  Tex.  290,  holding  inadmis- 
sible copy  of  a  copy  of  grant ;  Williams  v.  Conger,  49  Tex.  601,  as  to  proof 
of  power  of  attorney;  Tunstall  v.  Pollard,  11  Leigh  (Va.),  28,  as  to  proof 
of  appointment  as  executor;  Elliott  v.  Ray,  2  Blackf.  31,  discussing  sub- 
ject of  State  statutes;  Wilson  v.  Robertson,  1  Overt.  269,  discussing  gen- 
eral subject;  Loree  v.  Abner,  57  Fed.  164,  6  U.  S.  App.  649,  to  point  that 
Federal  courts  will  take  judicial  notice  of  laws  of  several  States;  Forsyth 
V.  Vehmeyer,  176  111.  362,  52  N.  E.  56,  arguendo. 

Distinguished  in  Hite  v.  Keene,  149  Wis.  216,  Ann.  Gas.  1913D,  251,  134 
N.  W.  386,  where  evidence  of  Swiss  statute  before  court  is  parol  testimony 
of  Swiss  lawyers,  as  experts,  jury,  not  court,  construes  law;  Schroecken  v. 
Swift  etc.  Co.,  19  Blatchf.  210,  7  Fed.  471,  under  statute;  Thompson  v. 
Stewart,  3  Conn.  182,  3  Am.  Dec.  171,  holding  that  seal  of  Court  of  Ad- 
miralty proves  itself;  Adams  v.  Way,  33  Conn.  429,  and  Williams  v. 
Wilkes,  14  Pa.  St.  230,  holding  that  Federal  courts  are  domestic  courts 
for  purposes  of  proof  of  records  in  State  courts;  Snyder  v.  Wise,  10  Pa. 
St.  160,  holding  judgment,  of  justice  of  peace  not  to  be  within  meaning  of 
act  of  Congress  directing  mode  of  authenticating  records. 

Limited  in  Barrows  v.  Downs,  9  R.  I.  449, 11  Am.  Rep.  285,  holding  parol 
evidence  of  expert  admissible  to  prove  foreign  written  law. 

Proof  and  evidence  of  foreign  laws  and  their  effect.    Note,  113  Am. 
St.  Bep.  881,  882. 

Admissibility  of  printed  copy  of  statutes  to  prove  law  of  another  ju- 
risdiction.   Note,  Ami.  Gas.  1916D,  858. 

Oral  proof  of  foreign  laws.    Note,  25  L.  R.  A.  449,  450,  452,  454. 

Authentication  of  foreign  law  is  not  oonsular  function. 
Cited  in  Stein  v.  Bowman,  13  Pet.  218,  10  L.  £d.  134,  holding  insufiQcient 
authentication  by  minister  resident  from  Great  Britain;  Levy  v.  Burley, 
2  Sumn.  359,  Fed.  Cas.  8300,  holding  consular  certificate  of  any  fact  not  to 
be  evidence  between  third  parties;  The  Alice,  12  Fed.  925,  as  to  copy  of 
bill  of  lading  certified  by  consul;  Stein  v.  Stein's  Curator,  9  La.  281,  as  to 


195  MASON  V.  SHIP  BLAIREAU.  2  Cr.  240-271 

attestation  of  signatures  of  public  functionaries;  Sioux  City  etc.  R.  R.  v. 
Washington  Co.,  3  Neb.  42,  holding  that  county  board  of  equalization  act- 
ing under  special  authority  can  exercise  only  powers  expressly  granted. 

Limited  in  State  v.  Behrman,  114  N.  C.  805,  19  S.  E.  223,  holding  certifi- 
cate of  marriage  attested  by  consul,  admissible  in  corroboration. 

Jurisdiction  and  powers  of  consuls.    Note,  45  L.  R.  A.  497. 

Submission  to  Jury  of  inadmissible  evidence  of  material  fact  is  ground 
for  new  trial  and  court  cannot  consider  tlie  soilLciency. 

Approved  in  Forsyth  v.  Wehmeyer,  176  111.  362,  52  N.  E.  56,  holding  evi- 
dence of  existence  of  judgment  record  sufficiently  proved;  State  v.  Smith, 
164  N.  C.  480,  79  S.  E.  981,  in  divorce  action  for  wife,  admission  of  aban- 
donment in  answer  in  previous  action  begun  by  wife  not  material  fact 
prejudicial  to  defendant;  Smith  v.  Carrington,  4  Cr.  72,  2  L.  Ed.  553,  as  to 
admission  of  improved  copy ;  Luty  v.  Purdy,  2  Overt.  165,  as  to  erroneous 
charge  upon  a  material  point ;  Washburn  v.  Tracy,  2  D.  Chip.  136,  15  Am. 
Dec  663,  as  to  refusal  to  charge  jury  on  a  material  point. 

Distinguished  in  Eaiapp  v.  McBride,  7  Ala.  30,  holding  mere  omission  to 
charge  jury  upon  material  point  not  ground  for  reversal.  Limited  in  Well- 
bom  V.  Carr,  1  Tex.  469,  holding  admission  of  such  evidence  as  to  point 
not  traversed  not  to  be  ground  for  reversal. 

Rules  for  interpretation  of  written  instruments.    Note,  ^14  £.  B.  0. 
664. 

2  Cr.  240-271,  2  I..  Ed.  266,  MASOK  T.  SHIP  BIATKBAV. 

No  po6itiT6  role  governs  rate  of  salvage;  In  fixing  It^  common  usages  of 
commercial  nations  tfioold  be  regarded. 

Approved  in  The  Lyman  M.  Law,  122  Fed.  822,  awarding  twelve  thou- 
sand dollars  as  salvage  for  rescue  of  abandoned  coal  schooner;  The  Thomas 
L.  James,  116  Fed.  670,  fixing  salvage  for  rescuing  stranded  lumber 
schooner;  United  States  v.  Morgan,  90  Fed.  572,  upholding  twelve  hundred 
dollars  for  salvage  service  to  government  lightship;  The  Connemara,  108 
U.  S.  369,  27  L.  Ed.  753,  2  Sup.  Ct.  758,  and  Tyson  v.  Prior,  1  Gall. 
135,  Fed.  Cas.  14,319,  holding  amount  to  be  in  discretion  of  court;  Rowe 

V.  Brig  ,  1  Mason,  377,  Fed.  Cas.  12,093,  and  Bond  v.  The  Cora,  2 

Pet.  Adm.  376,  2  Wash.  C.  C.  82,  Fed.  Cas.  1621,  holding  rate  to  be  gov- 
erned by  circumstances;  The  Fannie  Brown,  30  Fed.  221,  holding,  how- 
ever, amount  not  measured  by  risk  to  salvor;  Gaynor  v.  The  Gler,  31  Fed. 
426,  holding  tugboat  entitled  to  salvage  although  city  fire  engines  greater 
service ;  Bay  of  Naples,  48  Fed.  739,  1  U.  S.  App.  47,  readjusting  amount 
awarded  in  lower  court ;  The  Waterloo,  Blatchf .  &  H.  127,  Fed.  Cas.  17,257, 
under  similar  acts;  Taylor  v.  The  Cato,  1  Pet.  Adm.  60,  63,  66,  Fed.  Cas. 
13,786,  holding  dominant  consideration  to  be  benefit  accruing  to  owners  of 
property  saved;  Hand  v.  Elvira,  Gilp.  73,  Fed.  Cas.  6015,  allowing  two- 
fifths  of  property  saved ;  Cape  Fear  etc.  Co.  v.  Pearsall,  90  Fed.  438,  hold- 
ing that  apportionment  of  salvage  between  owners  and  crew  is  to  be  gov- 


2  Cr.  240-271  NOTES  ON  U.  S.  REPORTS.  196 

emed  by  circumstances;  The  Alabamian,  1  Fed.  Cas.  284,  holding  further 
that  salvors  of  cargo  only  cannot  claim  as  salvors  of  ship;  The  Huntress, 
12  Fed.  Cas.  981,  allowing  one-fourth  of  value  of  vessel  and  cargo ;  Pent 
V.  The  Ocean  Belle,  19  Fed.  Cas.  201,  and  Walter  v.  The  Montgomery,  29 
Fed.  Cas.  115,  where  rate  held  to  be  governed  by  circumstances;  The  San- 
dringham,  5  Hughes,  334,  10  Fed.  571,  discussing  general  subject. 

Limited  in  The  Brixham,  54  Fed.  541,  allowing  no  salvage  to  cargo,  as 
such,  of  saving  vesssel ;  The  Dupuy  de  Lome,  55  Fed.  96,  97,  holding  ship- 
per not  entitled  to  salvage,  unless  he  was  on  board  and  cpnsented  to  devia- 
tion. 

Right  to  claim  for  salvage.    Note,  24  E.  E.  0.  527,  528. 

Owner  of  saviiig  veiBel  1b  entitled  to  Uiare  of  salvage  In  amount  awarded. 
Qne-tlilid  allowed. 

Approved  in  Cape  Fear  Towing,  etc..  Transportation  Co.  v.  Pear- 
sail,  90  Fed.  438,  holding  that  there  is  no  true  rule  governing  division 
of  salvage  between  owner  and  crew;  Sewell  v.  Nine  Bales  of  Cotton, 
21  Fed.  Cas.  1108 ,  The  Camanche,  8  Wall.  473,  19  L.  Ed.  403,  follow- 
ing rule;  The  Saragossa,  1  Ben.  559,  Fed.  Cas.  12,335,  but  allowing  one- 
half  in  case  of  steamship;  Waterbury  v.  Myrick,  Blatchf.  &  H.  44,  Fed. 
Cas.  17,253,  basing  right  on  risk  incurred ;  The  Galaxy,  Blatchf.  &  H.  274, 
Fed.  Cas.  5186,  but  allowing  only  one-fourth;  and  in  The  C.  W.  Ring,  2 
Hughes,  102, 103,  Fed.  Cas.  3525,  allowing. three-fifths;  The  Charles,  Newb. 
334,  339,  Fed.  Cas.  4556 ,  The  T.  P.  Leathers,  Newb.  421,  Fed.  Cas.  9736 , 
Bond  V.  The  Cora,  2  Pet.  Adm.  382,  Fed.  Cas.  1621,  The  Henry  Eubank,  1 
Sumn.  426,  427,  Fed.  Cas.  6376 ,  The  Nathaniel  Harper,  3  Sumn.  577,  Fed. 
Cas.  10,032,  holding  right  not  affected  by  fact  that  vessel  is  sailing  under 
charter-party;  The  Pomona,  37  Fed.  816,  allowing  four-fifths  to  owners. 

Distinguished  in  The  Persian  Monarch,  23  Fed.  822,  823,  824,  allowing 
no  share  to  owner  where  consent  not  given  to  deviation. 

Rights  as  to  things  produced  by  labor  of  employee.    Note,  5  L.  B.  A. 
(N.  S.)  1160. 

Embezdement  on  part  of  salvor  works  forfeiture  of  Ills  sbare. 

Approved  in  Flinn  v.  The  Leander,  Bee,  262,  Fed.  Cas.  4870,  as  to  con- 
cealment of  part  of  property;  Cromwell  v.  Island  City,  1  Cliff.  229,  Fed. 
Cas.  3410,  on  same  point;  The  Schooner  Boston,  1  Sumn.  339,'  340,  Fed. 
Cas.  1673,  as  to  embezzlement  while  vessel  in  port;  The  Albany,  44  Fed. 
.434,  decreeing  forfeiture  of  owner's  share  for  embezzlement  by  crew;  The 
Missouri's  Cargo,  1  Sprague,  270,  Fed.  Cas.  9654,  holding,  however,  that 
embezzlement  by  master  does  not  affect  rights  of  crew ;  Lewis  v.  The  Eliza- 
beth and  Jane,  1  Ware,  43,  Fed.  Cas.  8321,  where  gross  negligence  held 
ground  for  forfeiture.  Cited  in  The  Rising  Sun,  1  Ware,  381,  Fed.  Cas. 
11,858,  holding,  however,  innocent,  salvors  not  affected  by  embezzlement; 
American  Ins.  Co.  v.  Johnson,  Blatchf.  &  H.  29,  Fed.  Cas.  303,  decreeing 
forfeiture  for  neglect  of  salvor  to  inform  master  of  wrecked  vessel  of  im- 
minent danger,  known  only  to  former;  Alexander  v.  Gallway,  Abb.  Adm. 


197  MASON  V.  SHIP  BLAIRE AU.  2  Cr.  240-271 

262,  Fed.  Cas;  167^  holding  seaman's  wages  forfeited  by  embezzlement  of 
part  of  cai^o;  Breevoor  v.  The  Fair  American,  1  Pet.  Adm.  99,  Fed.  Cas. 
1847;  The  Sumner's  Apparel,  Brown  Adm.  54,  Fe^.  Cas.  13,608,  on  general 
subject;  The  Florence,  9  Fed.  Cas.  296,  as  to  forfeiture  of  seaman's  wages; 
followed  in  The  Mulhouse,  17  Fed.  Cas.  966 ;  Roberts  v.  The  St.  James,  20 
Fed.  Cas.  928,  holding  further  that  it  is  discretionary  with  coui-t  to  deter- 
mine what  interest  shall  be  benefited  by  forfeiture ;  Williams  ▼.  Waterman, 
29  Fed.  Cas.  1417,  as  to  forfeiture  of  seaman's  wages,  holding,  however, 
that  embezzlement  works  forfeiture  only  to  value  of  property  taken. 

Sbare  of  apprentice  belongs  to  him  and  not  to  master. 

Rule  applied  in  Waterbury  v.  Myrick,  Blatchf .  &  H.  43,  Fed.  Cas.  17,253 ; 
Bell  y.  The  Ann,  2  Pet.  Adm.  282,  Fed.  Cas.  1245;  The  Wave,  Blatchf.  & 
H.  263,  Fed.  Cas.  17,297.  Approved  in  Ex  parte  Steiner,  22  Fed.  Cas.  1234, 
enforcing  agreement  of  master  to  pay  apprentice  for  overwork;  Gale  v. 
Parrbtt,  1  N.  H.  30,  32,  33,  as  to  minor's  share  in  prize  money,  holding 
further  that  it  cannot  be  recovered  by  parents  from  master;  Browning,  v. 
Baker,  2  Hughes,  41,  Fed.  Cas.  2041,  enumerating  classes  entitled  to  sal- 
vage. 

Distinguished  in  Bailey  v.  King,  1  Whart.  114,  29  Am.  Dec.  44,  denying 
right  of  apprentice  to  recover  from  master  for  extra  services  performed 
during  apprenticeship. 

Maziner  of  veiBel  saved,  left  on  board  when  veBsel  deserted  by  officers 
and  crew,  and  who  did  salvage  service  is  entitled  to  share  in  compensation. 

Approved  in  The  Eliza  Lines,  199  U.  S.  127,  50  L.  Ed.  119,  26  Sup.  Ct.  S, 
abandonment  of  vessel  entitles  cargo  owners  to  refuse  to  go  on  with  voyage 
where  master  has  not  obtained  vessel  from  salvors  before  cargo  owncis 
have  announced  decision;  Hobart  v.  Drogan,  10  Pet.  122,  9  L.  Ed.  363; 
The  Centurion,  1  Ware,  482,  Fed.  Cas.  2554,  and  The  Wave,  Blatchf.  & 
H.  243,  Fed.  Cas.  17,297,  holding  that  pilot,  having  discharged  duty  as 
such,  is  entitled  to  salvage  for  saving  vessel  subsequently  deserted;  The 
Two  Catherines,  2  Mason,  335,  Fed.  Cas.  14,288,  and  The  Massasoit,  1 
Sprague,  98,  Fed.  Cas.  9260,  where  seamen  allowed  salvage  to  amount  of 
wages,  when  not  entitled  otherwise  because  of  failure  of  freight;  The 
Wave  v.  Hyer,  2  Paine,  140,  Fed.  Cas.  17,30(5,  holding  seamen  discharged 
by  such  circumstances  from  contract  of  mariner;  The  Triumph,  1  Sprague, 
430,  431,  Fed.  Cas.  14,183,  and  The  Umatilla,  12  Sawy.  178,  29  Fed.  259, 
under  facts  similar  to  principal  case;  The  Acorn,  3  Ware,  98,  Fed.  Cas. 
10,252,  holding  seamen  entitled  to  salvage,  although  after  desertion  by 
most  of  crew  they  left  vessel,  returning  the  following  day;  The  Aguan,  48 
Fed.  322,  holding  seamen  entitled  to  salvage  when  vessel  wrecked  and 
voyage  broken  up.  Cited  generally  on  this  point  in  The  John  Perkins,  13 
Fed.  Cas.  704. 

Distinguished  in  The  Comet,  205  Fed.  992,  fishermen  towing  to  safety 
helpless  schooner,  upon  which  employed  not  entitled  to  salvage,  since  ves- 
sel not  abandoned ;  The  C.  P.  Minch,  61  Fed.  512,  refusing  remaining  sail- 
ors salvage  on  ground  that  danger  was  not  extreme;  Phillips  v.  McCall, 


2  Cr.  240-271  NOTES  ON  U.  S.  REPcCrTS.  198 

4  Wash.  147,  Fed.  Cas.  11,104,  holding  seamen  on  vessel  taken  as  prize  not 
entitled  to  salvage  for  retaking;  The  Olive  Branch,  1  Low.  287,  Fed.  Cas. 
10,490,  holding  seamen, not  discharged  by  desertion  of  master  alone;  The 

C.  P.  Minch,  73  Fed.  862,  38  U.  S.  App.  536,  holding  that- abandonment  by 
rest  of  crew  must  be  final ;  The  Nebraska,  75  Fed.  600,  24  U.  S.  App.  559, 
holding  that  detention  of  vessel  in  civil  fituit  does  not  discharge  master,  and 
entitle  him  to  salvage  for  saving  vessel  while  in  marshal's  custody;  The 

D.  M.  Hall  V.  The  John  Land,  7  Fed.  Cas.  775,  holding  that  transfer  of 
crew  of  vessel  in  peril  to  another  vessel,  pursuant  to  agreement  between 
masters,  does  not  discharge  crew. 

Rights  of  seamen  as  salvors.    Note,  64  Ii.  B.  A.  198,  199. 

Admiralty  courts  of  TTnited  States  have  Jurisdiction  of  case  of  salvage  of 
one  foreign  vessel  by  offlcen  and  crew  of  aootber. 

Approved  in  Bradbury  v.  Chicago  etc.  Ry.  Co.,  149  Iowa,  59,  40  L.  R.  A. 
(N.  S.)  684,  128  N.  W.  4,  plaintiff  employed  by  carrier  in  interstate  com- 
merce allowed  to  recover  in  State  court  under  Federal  statute  for  injury 
due  to  negligence  of  employee ;  Disconto  Gesellschaf t  v.  Umbreit,  127  Wis. 
660,  106  N.  W.  823,  where  German  corporation  obtained  judgment  in  Wis- 
consin against  nonresident  alien,  on  cause  of  action  accruing  in  Germany, 
corporation  could  not  impound,  by  ancillary  remedies  in  Wisconsin,  prop- 
erty of  debtor  there,  as  against  Wisconsin  creditor  whose  cause  of  action 
subsequently  accrued;  The  Belgenland,  114  U.  S.  363,  29  L.  Ed.  155,  5 
Sup.  Ct.  863,  as  to  collisions  between  foreign  vessels  on  high  seas;  The 
Adolph,  1  Curt.  89,  Fed.  Cas.  86,  ordering  marshal  to  pay  salvage  money 
into  court  at  instance  of  French  consul;  The  Jerusalem,  2  QsXL,  199,  Fed. 
Cas.  7293,  entertaining  suit  to  enforce  bottomry  bond  executed  in  foreign 
country  between  subjects  of  foreign  country,  vessel  being  in  United  States 
territory;  The  Tilton,  5  Mason,  471,  Fed.  Cas.  14,054,  ordering  sale  of 
wrecked  ship  upon  ajsplication  of  master;  One  Hundred  and  Ninety-four 
Shawls,  Abb.  Adm.  322,  Fed.  Cas.  10,521,  holding,  however,  jurisdiction 
to  be  in  discretion  of  court,  and  not  compulsory;  Fisher  v.  Rutherford, 
1  Bald.  193,  Fed.  Cas.  4823,  sustaining  jurisdiction  where  no  objection 
made;  in  Barrell  v.  Benjamin,  15  Mass.  357,  sustaining  an  action,  on  con- 
tract made  in  foreign  country,  against  foreigner  temporarily  within  juris- 
diction of  State  courts;  Cofrode  v.  Circuit  Judge,  79  Mich.  340,  44  N.  W. 
625,  holding  consent  sufficient  to  give  jurisdiction  over  persons  in  action 
on  contract. 

Distinguished  in  Piquignat  v.  Railway  Co.,  16  How.  106,  14  Ii.  Ed.  864, 
where  it  did  not  affirmatively  appear  that  defendant  was  an  alien. 

Nonresident's  right  to  sue  foreign  corporation.    Note,  70  L.  B.  A.  538. 

Miscellaneous.  Cited  in  The  Waterloo,  Blatchf.  &  H.  122,  Fed.  Cas. 
17,257,  on  point  not  arising  in  principal  case.  S0|  also,  in  Gourdin  v. 
West,  11  Rich.  296,  as  to  right  of  owner  of  slave  to  salvage  earned  by 
latter.  Also  in  Dabney  v.  Insurance  Co.,  14  Allen,  318,  on  point  that 
underwriter  is  not  discharged  by  deviation  to  assist  vessel  in  distress. 


199  OGDEN  V.  BLACKLEDGE.  2  Cr.  272-279 

EiToneonsly  cited  in  Scott  v.  Jones,  5  How.  374, 12  L.  Ed.  ^6,  and  Luther 
▼.  Borden,  7  How.  67,  12  L.  Ed.  605.  See,  also,  Thatcher  v.  McCuUoch, 
01c  371,  Fed.  Cas.  13,862,  citing  note  to  principal  case  aa  to  what  con- 
stitutes deviation. 


2  Cr.  272-279,  2  K  Ed.  276,  OGDEN  T.  VLACKJ^El 

B^pealed  statute  not  affected  hj  snbseqnent  statute  dMlaring  repeal  Ino]^ 
eiatlTe,  so  far  as  cases  pxlor  to  last  statute  are  concerns. 

Approved  in  dissenting  opinion  in  Milton  v.  Pace,  85  S.  C.  379,  67  S.  E. 
460,  majority  holding  that  execution  of  trust  in  life  tenant  by  Constitution 
of  1868  did  not  suspend  operation  of  statute  of  limitations,  as  to  remainder- 
men, commencing  to  run  against  trustee  in  1866;  Maryland  v.  Todd,  1  Biss. 
71,  Fed.  Gas.  9220,  holding  right  to  sue  barred  under  statute,  not  revived  by 
subsequent  statute;  Tinker  v.  Van  Dyke,  1  Flipp.  534,  Fed.  Cas.  14,058, 
construing  bankrupt  act;  Boyce  v.  Holmes,  2  Ala.  56,  holding  statute  not 
to  act  retrospectively;  Dockery  v.  McDowell,  40  Ala.  481,  482,  holding  stat- 
ute inoperative  to  impair  vested  right;  Thome  v.  San  Francisco,  4  Cal. 
136,  holding  statute  not  retrospective  when  not  expressly  declared  so; 
Perkins  v.  Perkins,  7  Conn.  564,  566, 18  Am.  Dec.  123,  126,  as  to  statute  pro- 
viding for  appeal  in  certain  oases;  Forsyth  v.  Marbury,  Charlt.  (Ga.)  334, 
holding  that  statute  of  limitations,  to  be  operative,  must  allow  time  in 
fnturo  to  commence,  action;  Wilder  v.  Lumpkin,  4  Ga.  219,  holding  act 
requiring  security  on  appeal  and  injunction  inapplicable  to  cases  pending 
at  time  of  passage;  Lewis  v.  Brackenridge,  1  Blackf.  222,  12  Am.  Dec.  230, 
declaring  retrospective  statute  unconstitutional  and  void;  McKinncy  v. 
Springer,  8  Blackf.  507,  46  Am.  Dec.  496,  as  to  statute  reviving  action 
barred  by  statute;  White  v.  Brown,  3  Mart.  (N.  S.)  20,  as  to  statute  regu- 
lating execution  of  notes ;  State  v.  Reed,^  31  N.  J.  L.  135,  distinguishing 
between  ex  post  facto  and  retroactive  laws,  and  holding  that  in  latter 
retroactive  intention  must  be  expressed;  Dash  v.  Van  Kleeck,  7  Johns. 
490,  498,  507,  5  Am.  Dec.  299,  304,  312,  where  sheriff  held  liable  for  escape 
occurring  before  passage  of  act  removing  such  liability;  Nichols  v.  Poul- 
8on,  6  Ohio,  309,  holding  contract  invalid  when  made,  not  revived  by  repeal 
of  statute  under  which  it  was  invalidated;  Bedford  v.  Shilling,  4  Serg. 
ft  R.  403,  411,  8  Am.  Dec.  719,  where  statute  prohibiting  certain  suits 
held  not  to  apply  to  suits  already  pending;  Girdner  v.  Stephens,  1  Heisk. 
285,  2  Am.  Bep.  703,  as  to  inability  of  legislature  to  divest  right  under 
statute  of  limitations ;  Vanderpoql  v.  La  Crosse  etc.  R.  R.  Co.,  44  Wis.  668, 
holding  necessary  expression  of  intention  that  statute  shall  act  retrospec- 
tively; Fisher  v.  Cockerill,  5  T.  B.  Mon.  135,  where  authorities  collected* 
and  discussed;  dissenting  opinion  in  Cunningham  v.  Dixon,  1  Marv.  (Del.) 
170,  41  Atl.  522. 

Distinguished  in  Jackson  Hill  Coal  &  Coke  Co.  v.  Board  of  Commis- 
sioners, 181  Ind.  340,  104  N.  E.  498,  action  for  recovery  of  taxes  improp- 
erly paid  revived  by  repeal  of  statute  of  limitations  after  period  had 
elapsed  to  bar  recovery;  Goshen  v.  Stonington,  4  Conn.  223,  10  Am.  Dec. 


2  Cr.  280-336  NOTES  ON  U.  S.  REPORTS.  200 

127>  enforcing  statute  expressly  declared  to  be  retrospective;  Ex  parte 
Quarrier,  4  W.  Va.  212,  continuing  an  act  requiring  attorneys  at  law  to 
take  oath  before  being  allowed  to  practice,  and  enforcing  it  as  to  attorney 
previously  admitted.    Denied  in  Smith  v.  Hickman,  Cooke,'  336. 

Construction  of  statutes  is  not  a  function  of  legldature. 

Approved  in  Rodwell  v.  Harrison,  132  N.  C.  49,  43  S.  E.  641,  construing 
municipal  election  laws  of  1893 ;  State  v.  Harden,  62  W.  Vft.  351,  58  S.  E. 
731,  legislature,  in  giving  municipal  council  power  to  grant  liquor  licenses, 
no  authority  to  determine  validity  of  previous  amendment  to  town  charter; 
Koshkonong  v.  Burton,  104  U.  S.  678,  26  L.  Ed.  890,  holding  court  bound 
to  disregard  erroneous  construction;  United  States  v.  Chong  Sam,  47  Fed. 
886,  as  to  construction  of  terms  in  Chinese  exclusion  acts;  In  re  Lands- 
berg,  14  Fed.  Cas.  1068,  as  to  revenue  acts ;  in  Jones  v.  Wootten,  1  Harr. 
81,  holding  legislature  incompetent  to  declare  what  the  law  has  been; 
State  V.  Dews,  Charlt.  (Ga.)  400,  distinguishing  between  legislative  and 
judicial  power;  Wilder  v.  Lumpkin,  4  Ga.  214,  as  to  provisions  in  statute 
repealing  statute  requiring  security  on  appeal;  Rockhold  v.  Canton  etc. 
Society,  129  111.  461,  21  N.  E.  797,  holding  legislative  construction  of  act 
relating  to  powers  of  corporations  not  binding  on  courts;  Merrill  v.  Sher- 
burne, 1  N.  H.  204,  8  Am.  Dec.  56,  holding  act  of  legislature  granting 
new  trial  unconstitutional;  People  v.  Supervisors  of  New  York,  16  N.  Y. 
432,  as  to  act  declaratory  of  intention  of  legislature  in  prior  act  regulating 
taxation;  Respublica  v.  McClean,  4  Yeates,  406,  as  to  act  declaratory  of 
judicial  powers  under  State  Constitution;  Eakin  v.  Raub,  12  Serg.  &  R. 
360,  as  to  power  of  court  to  declare  legislative  acts  unconstitutional. 

Distinguished  in  Satterlee  v.  Matthewson,  2  Pet.  413,  7  L.  Ed.  469, 
holding  statute  judicial  in  its  nature  not  to  be  repugnant  to  Constitution. 

Miscellaneous.  Cited  in  Brown  v.  Hiatt,  1  Dill.  386,  Fed.  Cas.  2011, 
and  Caldwell  v.  Southern  Express  Co.,  1  Flipp.  90,  Fed.  Cas.  2303,  to 
point  that  war  suspends  operation  of  statute  of  limitations  [point  not 
in  issue  in  principal  case] ;  Bender  v.  Crawford,  33  Tex.  751,  s.  c,  7  Am. 
Bep.  272,  to  point  that  retrospective  laws  are  obligatory  unless  forbidden 
by  State  Constitutions. 

2  Cr.  280-336,  2  I*.  Ed.  279,  McILVAINE  ▼.  GOZE'8  LBB8EE. 

(See  4  Or.  209,  2  I*.  Ed.  598.) 

States  of  Union  became  entitled  on  July  4,  1776,  to  rights  and  powers  of 
sovereign  States,  so  far  as  respects  their  internal  regulations. 

Cited  in  United  States  v.  New  Bedford  Bridge,  1  Wood.  &  M.  431,  Fed. 
Cas.  15,867,  in  discussing  subject  of  powers  of  Federal  government. 

Where  State  asserted  right  to  allegiance  of  all  persons  bom,  and  at  that 
time  residing  within  State,  act  of  sucA  person  in  afterward  leaving  and  adher- 
ing to  crown  did  not  render  him  an  alien. 

Approved  in  Jones  v.  McMasters,  20  How.  20,  15  L.  Ed.  810,  holding 
burden  of  proof  on  party  asserting  change  of  allegiance;  Brooks  v.  Clay, 


201  ADAMS  V.  WOODS.  2  Cr.  33^342 

3  A.  K.  Mareli.  550,  s.  c,  1  Litt.  (Ky.)  266,  holding  expatriation  not  to 
deprive  owner  of  property  previously  Acquired;  Lessee  of  Jackson  v. 
Bums,  3  Binn.  86,  holding  British  subject,  resident  in  Pennsylvania  before 
Declaration  of  Independence,  incapable  of  taking  land  by  descent. 

Distinguished  in  Hebron  v.  Colchester,  5  Day,  173,  where  British  subject 
coming  to  this  country  prior  to  1775  was  held  to  have  become  legally 

settled  by  purchase  of  lands  after  treaty  of  peace. 

• 

Miscellaneous.  Cited  in,  but  not  in  point,  Andrews  v.  Fenter,  1  Ark. 
197;  Biggers  v.  Pace,  6  Ga.  176;  State  v.  LaugUlin,  10  Mo.  App.  2. 

2  Or.  336-342,  2  li.  Ed.  297,  ADAMS  v.  WOODS. 

<)iii  tarn  action  founded  on  act  prohibiting  slave  trade  is  barrefd  by  lapse 
of  time,  under  act  limiting  prosecution  under  penal  statutes. 

Approved  in  Williams  v.  Wells  Fargo  &  Co.  Express,  177  Fed.  355,  21 
Ann.  Gas.  699,  35  L.  B.  A.  (N.  S.)  1034, 101  C.  C.  A.  328,  action  for  penalty, 
one-half  to  informer,  cannot  be  brought  in  name  of  informer  where  stat- 
ute expressly  commands  bringing  of  action  in  name  of  United  States; 
Carter.  V.  New  Orleans  etc.  R.  Co.,  143  Fed.  101,  action  against  carrier 
for  damages  for  unlawful  discrimination  is  governed  by  Rev.  Stats.,  §  1047, 
and  is  barred  in  five  years;  Htintii^on  v.  Attrill,  146  U.  S.  673,  36  L.  Ed. 
1180,  13  Sup.  Ct.  230,  as  to  penalty  for  falsifying  certificate  of  amount  of 
capital  stock;  Campbell  v.  Haverhill,  155  U.  S.  616,  39  L,  Ed.  282,  15 
Sap.  Ct.  220,  as  to  actions  for  infringement  of  letters  patent;  United 
States  V.  Mayo,  1  Gall.  397,  Fed.  Cas.  15,755,  as  to  forfeiture  under  em- 
bargo act;  in  Johnson  v.  United  States,  3  McLean,  89,  Fed.  Cas.  7418,  hold- 
ing statute  limiting  prosecutions  to  apply  to  offenses  under  subsequent 
statutes,  so  also  in  United  States  v.  Ballard,  3  McLean,  470,  Fed.  Cas. 
14,507;  United  States  v.  Dustin,  25  Fed.  Cas.  946,  and  United  States  v. 
Piatt,  27  Fed.  Cas.  549,  under  similar  acts;  United  States  v.  Shorey,  27 
Fed.  Cas.  1072,  as  to  prosecution  under  indictment  for  violation  -of  revenue 
laws;  Johnson  v.  Hughes,  1  Stew.  265,  as  to  penalty  for  failure  to  keep 
cdtton  gin  inclosed;  Western  Union  Tel.  Co.  v.  Nunnally,  86  Ga,  505,  12 
S.  E.  579,  as  to  penalty  for  failure  of  telegraph  company  to  deliver  dis- 
patch; Davidson  v.  Missouri  Pac.  Ry.,  3  Tex.  App.  Civ.  217,  as  to  penalty 
for  overcharge  on  freight. 

Distinguished  in  United  States  v.  Tithing  Yard,  9  Utah,  277,  34  Pac.  56, 
under  facts. 

Action  of  debt  lies  for  recovery  of  penalty  or  forfeiture. 

Approved  in  United  States  v.  Stevenson,  215  U.  S.  198,  54  L.  Ed.  167, 
30  Sup.  Ct.  35,  statute  making  it  misdemeanor  to  assist  importation  of 
contract  laborers  under  penalty  recoverable  in  action  of  debt  does  not 
prohibit  indictment;  Waters-Pierce  Oil  Co.  v.  State,  48  Tex.  Civ.  185, 
106  S.  W.  929,  statute  of  limitations  barring  recovery  in  criminal  action 
does  not  prevent  action  of  debt  for  recovery  of  penalties  imposed  by 
anti-trust  law;  Ex  parte  Marguand,  2  Gall.  554,  Fed.  Cas.  9100,  as  to 


2  Cr.  342-344  NOTES  ON  U.  S.  REPORTS.  202 

fine  for  impeding  customs  officers;  United  States  y.  Elliott,  25  Fed.  Cas. 
1266,  holding  further  that  declaration  must  state  precise  sum  demanded; 
State  V.  Desporges,  5  Rob.  (La.)  259,  as  to  suit  on  recognizance;  State 
V.  Williams,  7  Rob.  (La.)  267,  where  indictment  held  not  to  lie,  if  stat- 
ute provides  penalty ;  Scarborough  v.  Judges,  43  La.  Ann.  1167,  10  South. 
255,  holding  procedure  civil  and  not  criminal  in  nature  within  sense  of 
articles  of  the  Constitution  relative  to  appellate  jurisdiction;  State  v. 
Baker,  47  Miss.  95,  holding  debt  to  be  the  only  appropriate  remedy; 
Morrison  v.  Bedell,  22  N.  H.  239,  holding  that  action  for  penalty  for 
cutting  of  trees  cannot  be  joined  with  action  of  trespass;  and  in  David- 
son V.  Missouri  Pac.  Ry.,  3  Tex.  App.  Civ.  217,  holding  debt  to  be  proper 
remedy  when  no  other  mentioned  in  statute;  United  States  v.  Stocking, 
87  Fed.  860,  861,  United  States  v.  Gates,  25  Fed.  Cas.  1266,  United 
States  V.  Chapel,  25  Fed.  Cas.  397,  discussing  general  subject. 

Distinguished  in  United  States  v.  Brown,  2  Low,  268,  Fed.  Cas.  14,665, 
holding  prosecution  for  crime  punishable  by  imprisonment  not  to  be 
within  meaning  of  act  limiting  prosecutions  for  penalties;  dissenting 
opinion  in  State  v.  Williams,  7  Rob.  (La.)  274,  majority  holding  indict- 
ment did  not  lie  if  statute  provides  penalty. 

General  ezpreesions  In  statute  eonstmecL  as  inclnslTe  of  everytliing  within 
scope,  unless  restrained  by  wxirds  sbowlng  ns^  in  particular  sense. 

Approved  in  Gompers  v.  United  States,  233  U.  S.  612,  Ann.  Oas.  1915D, 
1044,  68  L.  Ed.  1120,  34  Sup.  Ct.  693,  proceedings  for  contempt  in  violat- 
ing injunction  is  barred  by  statute  of  limitations  requiring  prosecution 
of  o^enses  not  capital  within  three  years;  United  States  v.  Debs,  64 
Fed  749;  construing  a  statute  prohibiting  conspiracies  in  restraint  of 
trade;  dissenting  opinion  in  Gulliver  v.  Roelle,  100  111.  181,  as  to  con- 
struction of  term  "corporator";  Spencer  v.  State,  5  Ind.  58,  holding 
that  to  repeal  statute  by  implication,  language  must  be  clearly  repugnant. 

2  Or.  341^344,  2  L.  Ed.  299,  WINOHESTEB  T.  HACKLEY 

Creditor  upon  open  account,  who  has  assigned  claim  wltb  assent  of  debtor, 
may  sue  debtor  for  use  of  his  assignee. 

Approved  in  Suydam  v.  Ewing,  2  Blatchf.  361,  Fed.  Cas.  13,655,  hold- 
ing that  assignee  of  non-negotiable  contract  cannot  sue  in  his  own  name; 
Armstrong  v.  Mutual  Life  Ins.  Co.,  20  Blatchf.  496,  s.  c,  11  Fed.  576, 
holding  life  insurance  policy  assignable  only  to  extent  provided  in  con- 
tract; Sloan  V.  Sommers,  14  N.  J.  L.  512,  where  nominal  plaintiff  in  ac- 
tion on  note  was  not  allowed  to  release  action  without  consent  of  real 
plaintiff. 

Distinguished  in  Neyfong  v.  Wells,  Hard.  (Ky.)  563,  holding  that 
assignor  cannot  sue  in  his  own  name  for  use  of  assignee  if  instrument 
negotiable  in  form;  Reed  v.  Bainbridge,  4  N.  J.  L.  356,  denying  right 
of  assignor  to  sue  for  assignee,  where  bonds  made  assignable  by  statute. 

In  action  by  assignor,  debtor  may  set  off  bis  claims  against  the  assignee. 
Cited  in  Pitcher  v.  Patrick,  Minor,  322,  under  joint  plea  by  adminis- 
trators of  obligee  on  bond  of  two,  debt  from  intestate  to  one  of  obligees 


203  NOTES  ON  U.  S.  REPORTS.  2  Cr.  344-405 

may  "be  set  off;  Campbell  v.  Hamilton,  4  Wash.  94,  Fed.  Gas.  2359,  bs 
to  action  on  bond;  Bridge  v.  Johnson,  5  Wend.  356,  as  to  negotiable 
paper  transferred  when  overdue;  Patts  v.  St.  Clair,  11  Gratt.  24,  render- 
ing judgment  for  costs  gainst  real  plaintiff  when  suit  abandoned;  Wart- 
man  V.  Yost,  22  Gratt.  606,  allowing  judgment  assigned  to  defendant  to 
be  set  off  in  action  on  bond. 

Claim  for  nnllaoidated  damages  cannot  be  subject  of  setoff. 

Cited  in  Hutchinson  v.  Coombs,'  1  Ware,  69,  Fed.  Cas.  6955,  as  to 
claim  for  damages  for  tortious  discharge  of  seaman;  Smith  v.  Washing- 
ton Gas  Light  Co.,  31  Md.  18,  100  Am.  Dec.  51,  as  to  claim  arising  from 
breach  of  contract;  Jackson  v.  Bell,  31  N.  J.  Eq.  557,  as  to  trespass; 
Murray  v.  Toland,  3  Johns.  Ch.  576,  as  to  negligence;  Heck  v.  Scheucr, 
4  Scrg.  &  R.  260,  8  Am.  Dec.  710,  holding  evidence  of  embezzlement  not 
admissible  as  setoff  in  action  to  recover  for  services. 

2  Or.  S44r-357,  2  I«.  Ed.  300,  BEILY  ▼.  I«A1£AB. 

Citation  is  not  necessary  if  appeal  be  taken  during  same  term  at  wUcli 
final  decree  is  made. 

Rule  applied  in  The  San  Pedro,  2  Wheat.  142,  4  L.  Ed.  205,  as  to  appeal 
in  admiralty.  Approved  in  Hudgins  v.  Kemp,  18  How.  537,  15  L.  Ed. 
514,  but  holding  citation  necessary  when  appeal  allowed  by  judge  in 
vacation;  Hewitt  v.  Filbert,  116  U.  S.  144,  29  L.  Ed.  582,  6  Sup.  Ct.  320, 
but  holding  citation  necessary  when  appeal  allowed  at  subsequent  term. 

Practice   and    procedure    governing   transfer    of    causes   to    Federal 
Supreme  Court  for  review.    Note,  66  L.  R.  A.  843. 

Miscellaneous.  Cited  in  Ex  parte  Hull,  12  Fed.  Cas.  856,  M^rril  v.  Sher- 
bmrne,  1  N.  H.  204,  but  not  in  point. 

2  Gr.  358-406,  2  I..  Ed.  304,  UKITED  STATES  ▼.  FISHEBw 

In  oonstming  itotate^  every  part  is  to  be  considered,  including  titles^ 

Approved  in  United  States  v.  First  National  Bank,  234  U.  S.  258,  58 
L.  Ed.  1S04,  34  Sup.  Ct.  846,  holding  that  taxes  have  priority  of  payment 
in  bankruptcy  proceedings  over  claims  of  creditors,  but  not  over  e3q)enses 
of  proceedings ;  Lapina  v.  Williams,  232  U.  S.  92,  58  L.  Ed.  520,  34  Sup.  Ct. 
196,  holding  that  acts  of  1903  and  1907  were  directed  against  all  aliens 
irrespective  of  previous  domicile  in  this  country;  Cornell  v.  Coyne,  192 
U.  S.  430,  48  L.  Ed.  509,  24  Sup.  Ct.  386,  holding  quantity  of  "filled  cheese" 
manufactured  expressly  for  export  not  exempt  from  taxation  by  29  Stats. 
253;  White  v.  United  States,  191  U.  S.  550,  48  L.  Ed.  297,  holding  provi- 
sions of  navy  personnel  act  (30  Stat.  1004)  as  to  crediting  officers  appointed 
from  civil  life  with  five  years'  service  on  date  of  appointment  for  purpose 
of  computing  pay,  apply  to  pay  officers  thereto  appointed  from  commence- 
ment of  next  fiscal  year,  but  not  to  pay  for  period  prior  thereto;  Patterson 
v.  Bark  Eudora,  190  U.  S.  172,  47  L.  Ed.  1003,  23  Sup.  Ct.  822,  construing 
30  Stat.  755,  763,  relative  to  seaman's  wages;  Piru  v.  Chicago  Title  etc. 
Co.,  182  U.  S.  452,  46  L.  Ed.  1179,  21  Sup.  Ct.  911,  construing  bankrupt 


2  Cr.  358-405  NOTES  ON  U.  S.  REPORTS.  204 

act  of  July  1, 1898,  chapter,  541,  section  60,  relative  to  preferences ;  Dewey 
V.  United  States,  178  U.  S.  521,  44  L.  Ed.  1174,  20  Snp.  Ct.  985,  construing 
Rev.  Stats.,  §  902,  in  determining  question  of  superiority  of  force  at  battle 
of  Manila  Bay;  Knowlton  v.  More,  178  U.  S.  65,  44  L.  Ed.  979,  20  Sup.  Ct. 
756,  upholding  provision  of  war  revenue  act  imposing  taxes  on  l^acies; 
Connole  v.  Norfolk  etc.  Ry.  Co.,  216  Fed.  827,  holding  that  where  Ohio 
Workmen's  Compensation  Act  provides  that  it  shall  apply  to  employers 
and  employees  engaged  in  intrastate,  interstate  and  foreign,  commerce,  it 
was  not  class  legislation;  United  States  v.  Sutherland,  214  Fed.  324,  where 
in  United  States  district  having  two  divisions,  but  where  divisions  are  not 
statutory,  in  criminal  case  judge  has  discretion  to  transfer  cause  from  one 
division  to  other  for  prosecution ;  United  States  v.  Breeding,  207  Fed.  650, 
holding  that  as  no  Federal  statutes  limits  number  of  persons  to  be  sum- 
moned to  complete  grand  jury,  court  can  order  summoning  of  more  than 
twenty-three;  In  re  Lands  of  Five  Civilized  Tribes,  199  Fed.  824,  holding 
that  act  of  April  21,  1904,  did  not  remove  restrictions  relating  to  "home- 
steads" of  Choctaw-Chickasaw  freedmen;  Frame  v.  Bivens,  189  Fed.  790, 
holding  that  where  an  intermarried  citizen  of  Chickasaw  nation  executed 
mortgage  prior  to  obtaining  patent,  such  instrument  amounted  to  aliena- 
tion within  the  meaning  of  act  of  April  21,  1904;  In  re  Halsey  Electric 
Generator  Co.,  175  Fed.  831,  construing  words  "mixed-blood  Indians,"  and 
holding  that  any  Indian  having  identifiable  mixture  of  other  than  Indian 
blood  is  within  meaning  of  words ;  United  States  v.  Merriam,  161  Fed.  308, 
88  C.  C.  A.  349,  holding  that  where  later  act  of  Congress  does  not  in  its 
title  amend  or  repeal  an  act  requiring  record  of  map,  act  must  not  be  con- 
strued to  imply  repeal ;  St.  Louis  etc.  R.  Co.  v.  Delk,  158  Fed.  935,  14  Ann. 
Oas.  233,  86  C.  C.  A.  95,  holding  Safety  Appliance  Act  of  1893 ,  railroads 
must  keep  cars  ~  equipped  with  automatic  couplers  and  use  reasonable  care 
to  keep  such  couplers  in  repair;  United  States  v.  Colorado  etc.^R.  Co.,  157 
Fed.  324,  13  Ann.  Oas.  893,  15  L.  B.  A.  (N.  S.)  167,  85  C.  C.  A.  27,  holding 
that  appliances  required  under  the  acts  of  Congress  of  March  2,  1893,  April 
1,  1896,  and  March  2,  1903,  on  cars  of  railroads  engaged  in  interstate  com- 
merce, must  be  used  even  where  company  operates  wholly  within  single- 
state  ;  Rodgers  v.  United  States,  152  Fed.  350,  81  C.  C.  A.  454,  holding  that 
act  of  March  3,  1903,  does  not  apply  to  aliens  already  domiciled  in  this 
country;  Farmers'  Loan  etc.  Co.  v.  Sioux  Falls,  131  Fed.  908,  under  Const. 
S.  D.,  art.  XIII,  §  4,  city  indebted  to  nearly  fifteen  per  cent  of  assessed 
value  of  property  could  not  issue  bonds  so  as  to  increase  debt  to  twenty- 
three  per  cent;  M'Dumon  v.  Southern  Pac.  Co.,  122  Fed.  676,  holding 
Missouri  Rev.  Stats.  1899,  §  2876,  relative  to  contracts  limiting  liability  of 
railroads  for  injuries  to  servants  has  no  application  to  Pullman  porters; 
United  States  v.  McCrory,  119  Fed.  864,  holding  act  of  February  26,  1900, 
provides  for  restoration  of  suits  pending  in  Federal  courts;  Johnson  v. 
Southern  Pac.  Co.,  117  Fed.  465,  holding  27  Stat.,  chap.  196,  p.  531,  does 
not  make  it  unlawful  for  interstate  carriers  not  to  use  automatic  couplers; 
Swarts  V.  Si^el,  117  Fed.  19,  construing  bankruptcy  act  of  1898,  §  57g; 
Southern  Ry.  Co.  v.  Machinists'  Local  Union,  111  Fed.  57,  construing 
Tenn.  Acts  1875,  chapter  93;  and  holding  it  unlawful  for  striking  labor 


205  UNITED  STATES  v.  FISHER.  2  Cr.  368-405 

unioiiists  to  persuade  apprentices  to  quit  work;  The  Kestor,  110  Fed.  438, 
439,  upholding  30  Stat.  755,  §  24,  prohibiting  prepayment  of  seamen's 
wages;  M'Master  v.  New  York  Life  Ins.  Co.,  99  Fed.  868,  construing  insur- 
ance policy;  Webber  v.  St.  Paul  City*Ry.  Co.,  97  Fed.  145,  construing  Gen. 
Stat.  Minn.  1894,  §  5912,  relative  to  survival  of  actions  for  personal  in- 
juries; Mobile  etc.  R.  Co.  v.  Spenny,  12  Ala.  App.  411,  67  South.  751,  hold- 
ing that  where  white  sheriff  with  negro  prisoner  refused  to  observe  rule 
requiring  separation  of  races  on  passenger  car,  and  was  ejected  and  ob- 
tained judgment  for  damages  from  ejecting  company,  judgment  should  be 
reversed;  Griswold  v.  Griswold,  23  Colo.  App.  370,  129  Pac.  562,  holding 
that  where  marriage  was  contracted  in  New  Mexico,  and  valid  under  laws 
of  that  State,  it  was  valid  in  Colorado,  even  though  contracted  before  pro- 
hibited time  for  contracting  marriage  after  divorce  obtained  in  Colorado 
had  expired;  Mercer  v.  Mercer,  13  Colo.  App.  245,  57  Pac.  752,  holding 
Session  Laws  of  1893  deprives  Court  of  Appeals  of  appellate  jurisdiction  in 
divorce  suits;  Holden  v.  United  States,  24  App.  D.  C.  336,  holding  that 
where  discharge  of  gas  products  into  Potomac  was  prohibited  by  law, 
result,  even  though  it  renders  manufacture  of  gas  impracticable,  will  liot 
justify  court  in  refusal  to  enforce  it ;  State  v.  Shelton,  38  Jnd.  App.  87,  77 
N.  E.  1054,  holding  that  sale  of  liquors  on  Labor  Day  violated  act  concern- 
ing legal  holidays  which  prohibited  such  sale ;  State  v.  Meek,  148  Iowa,  680, 
AniL  Oaa.  19120,  1075,  SI  L.  R.  A.  (N.  S.)  566,  127  N.  W.  1026,  holding 
that  where  county  treasurer  received  delayed  payment  of  taxes  without 
exacting  penalty,  question  as  to  his  willfulness  was  for  jury;  Succ.ession 
of  Baker,  129  La.  85,  Ann.  Oas.  1912D,  1181,  55  South.  718,  holding  that 
word  "strangers"  as  used  in  inheritance  tax  statute,  where  tax  is  imposed 
on  inheritances  to  direct  and  collateral  relations,  applies  to  all  persons  not 
included  in  other  specified  classes ;  State  v.  Boasberg,  124  La.  297,  50  South. 
164,  holding  that  as  appointment  by  judge  of  substitute  for  district  at- 
torney was  nullity,  information  filed  by  substitute  was  also  nullity;  State 
v.  Bolden,  107  La.  119,  90  Am.  St.  Rep.  280,  31  South.  394,  upholding 
article  XUV  of  act  of  1890,  making  it  a  crime  to  willfully  shoot  any  per- 
son with  intent  to  kill ;  Pelletier  v.  O'Connell,  111  Me.  48,  Ann.  Oas.  1915B, 
1074,  88  Atl.  60,  holding,  that  proceedings  to  unseat  members  of  common 
council  must  be  in  accordance  with  rules  of  common  law ;  Phillips  v.  Mayor 
etc.  of  Baltimore,  110  Md.  439,  25  L.  R.  A.  (N.  S.)  711,  72  Atl.  906,  statute 
allowing  suit  against  corporation  may  be  brought  in  county  where  its  cer- 
tificate is  recorded  or  where  it  transacts  business,  does  not  apply  to  munici- 
pal corporation;  State  v.  Mississippi  Valley  Trust  Co.,  209  Mo.  492,  108 
S.  W.  102,  holding  executor  of  trustee  hot  liable  for  tax  on  trust  estate  not 
held  by  executor;  Forrester  v.  Southern  Pac.  Co.,  36  Nev.  270,  48  L.  R.  A. 
(N.  S.)  11,  134  Pac.  759,  action  for  wrongful  expulsion  from  train  com- 
menced by  nonresident,*  may  be  continued  by  plaintiff's  administratrix; 
State  V.  Erie  R.  Co.,  83  N.J.  L.  236,  84  Atl.  700,  question  whether  dense 
smoke  created  by  use  of  soft  coal  by  railroad  was  nuisance  was  for  jury; 
White  V.  White,  61  N.  J.  Eq.  631,  47  Atl.  629,  holding  under  chancery  act 
as  amended  in  1  Gen.  Stats.,  p.  402,  appeals  must  be  taken  within  three 
months  of  filing  decree;  School  Commrs.  v.  Board  of  Alderman,  158  N.  C. 


2  Cr.  368-405  NOTES  ON  U.  S.  REPORTS.  206 

197,  73  S.  £.  908;  holding  that  school  commissioners  had  exclusive  control 
and  fund  should  be  paid  them  by  aldermen;  State  v.  Thompson,  21  N.  D. 
437,  131  N.  W.  237,  holding  cumulative  voting  not  authorized  in  election 
of  city  officers ;  Luick  v.  Arends,  21  N.  D.  637,  132  N.  W.  361,  holding  that 
statute  of  state  wherein  action  was  pending  controlled  as  against  statute 
of  sister  state ;  Neilson  v.  Alberty,  36  Okl.  495,  129  Pac.  849,  holding  issu- 
ance of  certificate  of  competency  to  Osage  Indian  did  not  subject  land  to 
•judgment  lien  recovered  before  such  issuance;  Choctaw  etc.  R.  R.  Co.  v. 
Alexander,'7  Okl.  583,  584,  595,  52  Pac.  945,  54  Pac.  422,  construing  act 
regulating  prairie  fires;  Osgood  v.  Central  Vermont  Ry.  Co.,  77  Vt.  340, 
70  L.  R.  A.  930,  60  Atl.  139,  under  statute  providing  for  imprisonment  of 
agent  of  railroad  whose  negligence  causes  injury,  but  not  exempting  liabil- 
ity for  damages,  lessor  of  part  of  right  of  way  for  coalsheds  under  agree- 
ment for  indemnity  for  negligence  of  railroad's  servants,  cannot  recover  for 
negligent  running  of  engine  against  shed;  dissenting  opinion  in  Chauncey 
V.  Dipke  Bros.,  119  Fed.  16,  17,  majority  holding  liens  of  laborers  and 
materialmen  superior  under  Ark.  Acts  1895,  p.  217,  §  3,  to  that  of  mort- 
gagees ;  dissenting  opinion  in  People  v.  Harrison,  191  III.  271,  6l  N.  E.  104, 
majority  holding  that  under  annexation  act  1889,  p.  18,  liquor  prdinances 
of  Hyde  Park  continued  in  force  after  annexation  to  Chicago;  dissenting 
opinion  in  McDermott  v.  State,  143  Wis.  44,  21  Ann.  Oas.  1315,  126  N.  W. 
895,  majority  holding  that  provisions  of  act  of  Congress  of  June  30,  1906, 
does  not  in  depriving  infringers  of  property  and  liberty  violate  Constitu- 
tion; Anable  v.  Montgomery  County  Commrs.,  34  Ind.  App.  78,  107  Am. 
St.  Rep.  173,  71  N.  E.  274,  arguendo;  Smythe  v.  Fiske,  23  Wall.  380,  23 
L.  Ed.  49,  construing  revenue  laws;  Doggett  v.  Railroad  Co.,  99  U.  S.  78, 
25  L.  Ed.  303,  as  to  statute  providing  for  taxation  of  bonds ;  Lake  County 
V.  Rollins,  130  U.  S.  671,  32  L.  Ed.  1063,  9  Sup.  Ct.  652,  construing  con- 
stitutional limitation  on  counties  as  to  indebtedness;  Church  of  the  Holy 
Trinity  v.  United  States,  143  U.  S.  462,  36  L.  Ed.  229,  12  Sup.  Ct.  513,  as 
to  act  relating  to  immigration  under  contract  to  perform  labor;  Coosaw 
Mining  Co.  v.  South  Carolina,  144  U.  S.  563,  86  L.  Ed.  542,  12  Sup.  Ct. 
692,  construing  strictly  legislative  grant  of  property;  Bate  Refrigerating 
Co.  V.  Sulzberger,  157  U.  S.  38,  39  L.  Ed.  611,  15  gup.  Ct.  517,  as  to  patent 
laws ;  United  States  v.  Oregon  etc.  R.  R.,  164  U.  S.  541,  41  L.  Ed.  545,  17 
Sup.  Ct.  170,  holding,  however,  that  title  cannot  be  considered,  unless  act 
otherwise  ambiguous ;  Price  v.  Forrest,  173  U.  S.  427,  43  L.  Ed.  755,  hold- 
ing preamble* may  be  considered;  Ogden  v.  Strong,  2  Paine,  588,  Fed.  Cas. 
10,460,  where  rule  is  applied  to  private  statutes ;  Copeland  v.  Memphis  etc. 
R.  R.  Co.,  3  Woods,  661,  Fed.  Cas.  3209,  as  to  preamble  of  act  of  incorpo- 
ration; in  Hahn  v.  Salmon,  10  Sawy.  196,  s.  c,  20  Fed.  809,  but  holding 
preamble  to  be  considered  only  in  case  of  ambiguity;  Wilson  v.  Spauld- 
ing,  19  Fed.  305,  as  to  title  of  tariff  statute;  in  United  States  v.  Union 
Pac.  Ry.  Co.,  37  Fed.  553,  as  to  title  of  act  granting  land  to  railroad  com- 
pany; United  States  v.  Chong  Sam,  47  Fed.  884,  in  construing  Chinese 
exclusion  act;  Berlin  Bridge  Co.  v.  San  Antonio,  62  Fed.  889,  as  to  con- 
stitutional limitation  on  contraction  of  debts  by  city;  Oregon  etc.  Ry.  Co. 
V.  United  States,  67  Fed.  655,  29  U.  S.  App.  497,  as  to  railroad  land  grant ; 


207  UNITED  STATES  v.  FISHER.  2  Cr.  358-405 

■ 

Knox  Co.  V.  Morton,  68  Fed.  789,  32  U.  S.  App.  513,  as  to  statute  limiting 
time  for  presentment  of  county  warrants;  Shreve  v.  Cheesman,  69  'Fed. 
789,  32  U.  S.  App.  676,  as  to  statute  providing  for  recovery  of  costs;  St. 
Paul  etc.  Ry.  Co.  v.  Sage,  71  Fed.  47,  36  U.  S.  App.  340,  as  to  railroad  land 
grants ;  Barber  etc.  Co.  v.  City  of  Denver,  72  Fed.  345,  36  U.  S.  App.  499, 
constming  city  charter;  Pearsall  v.  Great  Northern  Ry.  Co.,  73  Fed.  942, 
as  to  statutes  amending  corporate  charter;  in  In  re  Wong  Fock,  81  Fed. 
561,  determining  jurisdiction  under  Chinese  exclusion  act ;  In  re  Chad  wick, 
5  Fed.  Cas.  400,  construing  bankruptcy  act;  Ludington  v.  The  Nucleus,  15 
Fed.  Cas.  1095,  as  to  act  extending  jurisdiction  of  admiralty  to  lakes  and 
rivers;  Prentiss  v.  Ellswortl^,  19  Fed.  Cas.  1282,  construing  patent  laws; 
in  Bartlett  v.  Morris,  9  Port.  268,  270,  as  to  private  statute,  holding  title 
to  govern  only  when  act  ambiguous;  Wiswell  v.  Monroe,  4  Ala.  17,  con- 
struing statute  as  to  duty  of  register  to  certify  facts  to  court;  Enslava's 
Heirs  v.  Boiling,  22  Ala.  736^  as  to  private  act  for  relief  of  heirs  of  dece- 
dent; Broadbent  v.  Tuskaloosa  Scientific  etc.  Assn.,  45  Ala.  171,  as  to  cor- 
porate charter,  where  State  Constitution  requires  title  to  clearly  express 
intention  of  legislature;  Ex  parte  Ellis,  11  Cal.  225,  holding  statute  in 
derogation  of  common  law  to  be  construed  strictly;  Tape  v.  Hurley,  66 
Cal.  474,  6  Pac.  130,  construing  statute  opening  schools  to  white  children, 
to  include  Chinese  under  amendment  making  no  mention  of  race;  Metcalf 
V.  Qillet,  5  Conn.  403,  as  to  act  regulating  method  of  appraisement  of 
prox)erty  taken  under  execution;  dissenting  opinion  in  Booth  v.  Booth,  7 
Conn.  368,  as  to  statute  regulating  levy  of  executions;  Farrell  Foundry  v. 
Dart,  26  Conn.  381,  holding  statute  not  to  be  extended  beyond  clearly  ex- 
pressed intention  of  legislature ;  White  v.  Camp,  1  Fla.  109,  holding  statute 
in  derogation  of  common  law  to  be  strictly  construed ;  State  v.  Commis- 
sioners of  Jefferson  Co.,  20  Fla.  432,  as  to  act  regulating  sale  of  intoxi- 
cating liquors;  Eastman  v.  McAlpin,  1  Ga.  171,  but  holding  title  not  to  be 
part  of  statute;  Akin  v.  Freeman,  49  Ga.  54,  as  to  statute  amending  prior 
statute  of  limitations,  holding  prior  statute  should  be  considered;  dissent- 
ing opinions  in  People  v.  Wren,  4  Scam.  277,  282,  when  construing  an  act 
creating  a  county  which  included  part  of  another  county,  majority  held 
act  to  create  county  absolutely,  without  regard  to  option  of  inhabitants 
to  organize  or  not;  Perry  County  v.  Jefferson  County,  94  111.  220,  giving 
effect  to  title  in  construing  act  establishing  boundary  between  counties; 
Ohio  &  Miss.  Ry.  Co.  v.  People,  123  111.  486,  14  N.  E.  881,  as  to  constitu- 
tional provision  regarding  corporations;  Spencer  v.  State,  5  Ind.  58,  hold- 
ing clearly  repugnant  language  necessary  to  effect  repeal  of  statute,  and 
giving  effect  to  title  of  act ;  Simington  v.  State,  5  Ind.  484„  as  to  construc- 
tion of  acts  defining  jurisdiction  of  courts;  Dodd  v.  State,  18  Ind.  62,  as 
to  amendatory  act ;  Duf9ur  v.  Dufour,  28  Ind.  425,  construing  term  "final 
settlement"  in  statute  regulating  administration;  Garrigus  v.  Commission- 
ers of  Parke  Co.,  39  Ind.  71,  holding  title  to  be  considered  when  act  other- 
wise ambiguous ;  Cory  v.  Carter,  48  Ind.  337,  17  Am.  Rep.  745,  as  to  provi- 
sions of  State  Constitution;  Stout  v.  Commissioners  of  Grant  County,  107 
Ind.  347,  8  N.  E.  224,  holding  intention  of  legislature  must  be  regarded; 
United  States  Savings  etc.  Co.  v.  Harris,  142  Ind.  231,  40  N.  E.  1073,  hold- 


2  Cr.  35&-405  NOTES  ON  U.  S.  REPORTS.  208 

ing  term  "conveyance  of  real  estate"  to  include  mortgage;  dissenting 
opinion  in  Jones  v.  Iowa,  1  Iowa,  403,  as  to  proviso  in  repealing  act; 
Doane  v.  Farrow,  9  Mart.  (La.)  (0.  S.)  254,  as  to  statute  requiring  notice 
in  certain  actions ;  Borie  v.  Borie,  5  La.  92 ,  as  to  statute  regulating  control 
of  property  of  feme  covert;  State  v.  Cazeau,  8  La,  Ann.  116,  holding  title 
not  to  govern  clear  expression  of  act;  Harlow  v.  Young,  37  Me.  91,  but 
holding  title  and  preamble  not  parts  of  act;  Frazier  v.  Warfield,  13  Md. 
301,  304,  as  to  act  providing  for  inspection  of  grain ;  Miller  v.  Cumberland 
Cotton  Factory,  ^6  Md.  492,  as  to  act  creating  liens;  Smith  v.  Thursby,  28 
Md.  260,  construing  State  Constitution ;  Leonard  v.  Wiseman,  31  Md.  205, 
as  to  act  providing  for  payment  of  bounty  to  enlisted  men;  Maxwell  v. 
State,  40  Md.  292,  as  to  act  providing  for  assessment  of  taxes;  Common- 
wealth V.  Casey,  12  Allen,  221,  construing  statute  providing  penalty  for 
violation  of  revenue  laws;  Bronson  v.  Newberry,  2  Doug.  (Mich.)  43,  as 
to  "nonimprisonment  act";  Wales  v.  Lyons,^  2  Mich.  286,  as  to  statute 
abolishing  special  pleadings;  People  v.  Plumsted,  2  Mich.  468,  as  to  act 
exempting  homesteads  from  forced  sale;  Taylor  v.  Taylor,  10  Minn.  120, 
construing  strictly  statute  in  derogation  of  common  law;  Minor  v.  State, 
36  Miss.  636,  as  to  statute  providing  for  appeals  in  criminal  cases ;  Learned 
V.  Corley,  43  Miss.  695,  as  to  statute  regulating  procedure  in  ejectment; 
State  V.  Williams,  35  Mo.  App.  547,  construing  "Sunday  laws";  Boyd  v. 
Ward  Furniture  etc.  Co.,  38  Mo.  App.  217,  construing,  liberally,  statute 
regulating  executions  on  personal  property;  State  v.  Macklin,  41  Mo.  App. 
342,  as  to  statute  prescribing  qualifications  of  school  directors;  Westport 
V.  Mastin,  62  Mo.  App.  658,  construing  section  of  city  charter  providing 
for  tax  levy ;  Smith  v.  Williams,  2  Mont.  200,  as  to  act  to  prevent  tres- 
passing of  cattle;  Davis  v.  Clark,  2  Mont.  396,  as  to  ejectment  under  stat- 
ute; Smiley  v.  Sampson,  1  Neb.  90,  restraining  general  words  when  par- 
ticular intent  not  apparent;  Shellenbei^er  v.  Ransom,  41  Neb.  643,  59 
N.  W.  939,  as  to  statute  regulating  descent;  Brown  v.  Davis,  1  Nev.  414, 
as  to  statute  defining  duties  of  public  officers ;  Bow  v.  Nottingham,  1  N.  H. 
264,  as  to  statute  providing  for  settlement  of  illegitimate  children ;  Kidder 
V.  Stewartstown,  48  N.  H.  292,  holding  title  of  statute  to  be  considered; 
Hale  V.  Everett,  53  N.  H.  82,  16  Am.  Bep.  127,  construing  clause  of  State 
Constitution  holding,  where  intention  is  clear,  there  is  no  room  for  con- 
struction; but  see  also  dissenting  opinion,  pages  165,  225,  minority  hold- 
ing that  consequences  should  be  considered,  and  if  the  language  results 
in  an  exception  to  a  general  rule,  the  intention  must  be  clearly  and  irre- 
sistibly so  expressed;  Ogden  v.  Price,  9  N.  J.  L.  170,  but  holding  statute 
must  be  ambiguous  in  order  to  apply  rules  of  construction;  Brown  v. 
Wright,  13  N.  J.  L.  242,  construing  insolvency  act;  State  v.  Clark,  29 
N.  J.  L.  99,  as  to  act  constituting  willful  destruction  of  property  an  in- 
dictable offense;  Rudderow  v.  State,  31  N.  J.  L.  515,  as  to  act  regulating 
assessment  of  stock;  Evemham  v.  Hulit,  45  N.  J.  L.  55,  but  holding  title 
incompetent  to  supply  defects  or  omissions  in  body  of  statute;  Wallace  v. 
Wallace,  3  N.  J.  Eq.  623,  construing  statute  regulating  probate  of  wills; 
Morris  Canal  etc.  Co.  v.  Central  R.  R.  Co.,  16  N.  J.  Eq.  428,  as  to  title  of 
act  of  incorporation;  Tafoya  v.  Garcia,  1  N.  M.  483,  as  to  title  of  act  "rela- 


209  UNITED  STATES  v.  FISHER.  2Cr.36S-405 

tive  to  revision  of  statutes'' ;  Buel  v.  Southwick,  2  N.  M.  384,  dissenting 
opinion  to  effect  that  where  terms  are  plain  there  is  no  room  for  construe- 
tion;  Jackson  v.  Van  Zandt,  12  Johns.  175,  construing  statute  abolishing 
entails;  People  v.  Roper,  35  N.  Y.  635,  as  to  statute  exempting  class  from 
taxation ;  People  v.  Molyneux,  40  N.  Y.  122,  considering  title  in  act  relative 
to  national  guard;  People  v.  Potter,  47  N.  Y.  382,  applying  principle  to 
construction  of  State  Constitution;  Ayers  v.  Lawrence,  59  N.  Y.  197,  as  to 
act  for  protection  of  taxpayers  against  frauds  of  public  officers;  People 
V.  Wood,  71  N.  Y.  374,  as  to  acl  providing  for  settlement  of  floating  debt 
of  city;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  37,  40  Am.  Rep.  519,  as  to 
statute  relating  to  validity  of  marriage  contracts;  Cogswell  v.  New  York 
etc.  R.  R.  Co.,  103  N.  Y.  22,  8  N.  E.  542,  construing  section  of  corporate 
charier  granting  certain  jwwers;  Hill  v.  Mayor  of  New  York,  139  N.  Y. 
502,  34  N.  E.  1092,  on  same  point;  Morton  v.  Mayor  of  New  York,  140 
N.  Y.  213,  35  N.  E.  491,  and  Simonston  v.  Lanier,  71  N.  C.  502,  construing 
corporate  charter;  Freight  Discrjjnination  Cases,  95  N.  C.  447,  holding  title 
of  act  competent  to  indicate  intention;  State  v.  Pugh,  43  Ohio  St.  113, 
1  N.  E.  448,  as  to  title  of  act  to  reorganize  certain  cities;  State  v.  Robin- 
son, 32  Or.  46,  48  Pac.  358,  holding  title  is  to  be  considered  in  construing 
penal  statute;  Deddrick  v.  Wood,  15  Pa.  St.  12,  construing  act  prohibit- 
ing obstruction  of  river;  State  v.  Holman,  3  McCord  (S.  C.)  307,  as  to  act 
relating  to  fraudulent  packing  of  cotton;  State  v.  Williams,  2  Strob.  477, 
as  to  penal  statute;  Asdell  v.  Sutherland,  Peck  (Tenn.),  129,  holding  fur- 
ther that  prior  statutes  on  same  subject  should  be  considered;  Trott  v. 
McGavock,  1  Yei^.  479,  construing  statute  relating  to  officer's  duties  in 
levying  executions ;  Fisher  V.  Dabbs,  6  Yerg.  149,  construing  statute  pro- 
viding for  manumission  of  slaves;  State  v.  Delesdenier,  7  Tex.  104,  106, 
as  to  statute  exempting  certain  public  lands  from  taxation;  dissenting 
opinion  in  Texas  B.  &  I.  Co,  v.  Cohen,  47  Tex.  413,  and  principle  applied 
to  construction  of  provision  in  policy  of  insurance ;  Cline  v.  State,  36  Tex. 
Cr.  351,  61  Am.  St.  Rep.  870,  36  S.  W.  1108,  construing  section  of  Constitu- 
tion regarding  right  to  "speedy  public  trial";  United  States  v.  Snow,  4 
Utah,  320,  9  Pac.  702,  construing  terms  of  "Edmunds  act" ;  Pratt  v.  Swan, 
16  Utah,  491,  52  Pac.  1094,  construing  statute  relative  to  powers  of  munici- 
pal officers;  State  v.  Shattuck,  69  Vt.  409,  60  Am.  St.  Rep.  939,  38  Atl. 
82,  as 'to  statute  forbidding  guilty  party  to  decree  of  divorce  to  remarry; 
Crafford  v.  Supervisors  of  Warwick  Co.,  87  Va.  115,  12  S.  E.  148 ;  holding 
word  "persons,"  inclusive  of  "corporations";  dissenting  opinion  in  Buffhan 
v.  Racine,  26  Wis.  453,  to  point  that  where  language  is  plain,  rules  of  con- 
struction not  to  be  applied.  The  principal  case  has  also  been  cited  in  the 
following  cases,  discussing  general  subjects:  In  re  Smith,  22  Fed.  Cas. 
402 ;  Opinion  of  Justices,  46  Me.  586 ;  Jim  y.  State,  3  Mo.  167,  170 ;  Wear 
V.  Bryant,  5  Mo.  172,  dissenting  opinion  in  Seldon  v.  Hall,  21  Mo.  App. 
466;  dissenting  opinion  in  Rich  v.  Flanders,  39  N.  H.  370;  State  v.  Whitaker, 
85  N.  C.  569 ;  Weatherhead  v.  Bledsoe,  2  Overt.  379. 

Preference  given  by  Bankruptcy  Act,  section  6,  is  not  confined  to  persons 
accountable  for  public  money,  but.  extends  to  debtors  of  United  States  gsur 
erally. 

1—14 


2  Cr.  358-405  .    NOTES  ON  U.  S.  REPORTS.  210 

Approved  in  In  re  Bennett,  153  Fed.  689,  82  C.  C.  A.  531,  holding  that 
under  bankruptcy  act  of  July  1,  1898,  right  of  priority  of  claim  in  bank- 
ruptcy, passes  to  assignee;  Advance  Thresher  Co.  v.  Beck,  21  1^.  D.  59, 
Ann.  Oas.  191dB,  517,  128  N.  W.  316,  holding  that  threshing  machine  might 
be  sold  to  pay  taxes,  interest  and  taxes,  but  no  more;  S.  H.  Hawes  &  Co. 
V.  Wm.  R.  Trigg  Co.,  110  Va.  206,  65  S.  E.  554,  holding  that  statutory  lien 
for  labor  and  supplies  was  superior  to  lien  of  government ;  Lewis  v.  United 
States,  92  U.  S.  621,  28  L.  Ed.  514,  as  to  money  advanced  for  disburse- 
ment ;  United  States  v.  Hoiar,  2  Mason,  316,  Fed.  Cas.  15,373,  holding  stat- 
ute of  limitations  does  not  extend  to  debts  due  United  States;  United 
States  V.  Cook  County  Bank,  9  Biss.  58,  Fed.  Cas.  14,853,  as  to  postal 
and  money  order  funds  deposited  in  bank;  United  States  v.  Wilkinson,  5 
Dill.  277,  Fed.  Cas.  16,695,  holding  priority  of  United  States  secured  only 
when  by  act  of  law  or  the  debtor  property  is  being  administered  for  bene- 
fit of  creditors  generally;  United  States  v.  Eggleston,  4  Sawy.  204,  Fed. 
Cas.  15,027,  but  holding  that  priority  does  not  create  lien;  to  same  effect 
also  in  United  States  v.  Griswold,  7  Sawy.  303,  8  Fed.  501;  Anderson  v. 
State,  23  Miss.  475,  but  holding  right  of  prior  payment  does  not  of  itself 
create  lien;  United  States  v.  Hahn,  37  Mo.  App.  583,  holding,  however, 
costs  of  administration  and  widow's  allowance  to  take  precedence  over 
claims  of  United  States;  Aikin  v.  Dunlap,  16  Johns.  85,  holding  priority 
does  not  create  lien ;  on  same  point  in  Storm  v.  Waddell,  2  Sandf .  Ch.  527 , 
Ridgley  v.  Iglehart,  3  Bland  Ch.  542,  544,  United  vStates  v.  Thompson, 
33  Md.  577,  State  v.  Harris,  2  Bail.  600,  dissenting  opinion  in  Merrill  v. 
National  Bk.  of  Jacksonville,  173  U.  S.  177,  48  L.  Ed.  657,  arguendo. 

Distinguished  in  Postmaster-General  v.  Bobbins,  1  Ware,  169,  Fed.  Cas. 
11,314,  holding  such  debts  not  to  take  priority  over  widow's  allowance 
from  decedent's  estate;  Bush  v.  United  States,  8  Sawy.  330,  14  Fed.  323, 
holding  priority  attaches  only  in  case  property  assigned  for  benefit  of  all 
creditors;  Wilcocks  v.  Wain,  10  Serg.  &  R.  380,  holding  that  debts  due 
United  States  do  not  take  priority  over  debt  secured  by  mortgage. 

Priority  of  State  of  United  States  in  payment.    Note,  29  L.  R.  A.  228, 
229,  241. 

Power  to  make  all  laws  necessary  and  proper  tx>  carry  Into  execation 
powers  granted,  confen  on  Congress  choice  of  means  and  does  not  confine  it 
to  what  is  Indispensably  necessary.  "^ 

Approved  in  United  States  v.  288  Packages  of  Merry  World  Tobacco, 
103  Fed.  454,  upholding  act  of  July  24,  1897,  prescribing  contents  of 
tobacco  packages;  dissenting  opinion  in  People  v.  McCullough,  254  111.  33, 
Ann.  Cas.  1913B,  995,  98  N.  E.  164,  majority  holding  officers  of  Secretary 
of  State  are  within  civil  service  law;  dissenting  opinion  in  Civil  Rights 
Cases,  109  U.  S.  51,  27  L.  Ed.  853,  3  Sup.  Ct.  50,  where  the  majority  held 
the  passage  of  civil  rights  act  not  within  the  power  of  Congress ;  Juilliard 
V.  Greenman,  110  U.  S.  440,  441,  28  L.  Ed.  212,  4  Sup.  Ct.  126,  upholding 
power  of  Congress  to  make  treasury  notes  legal  tender;  dissenting  opinion 
in  Baldwin  v.  Franks,  120  U.  S.  701,  80  L.  Ed.  776,  7  Sup.  Ct.  667,  major- 
ity holding  unconstitutional,  a  statute  providing  for  punishment  of  con- 


211  UNITED  STATES  v.  FISHER.  2  Cr.  358-405 

spiraeies  to  deprive  aliens  of  rights  secured  by  treaty;  dissenting  opinion 
in  In  re  Neagle,  135  U.  S.  87,  84  L:  Ed.  79,  10  Sup.  Ct.  676,  to  point  that 
act  of  Congress  is  necessary  to  give  jurisdiction  to  Circuit  Courts;  In  re 
Jackson,  14  Blatchf.  250,  Fed.  Cas.  7124,  upholding  constitutionality  of  act 
providing  penalty  for  siding  matter  relating  to  lotteries  through  the 
mails;  In  re  Reiman  and  Friedlander,  7  Ben.  466,  Fed.  Cas.  11,673,  hold- 
ing power  of  Congress  over  bankruptcy,  general  and  unlimited;  People  v. 
Na^lee,  1  Cal.  235,  62  Am.  Dec.  315»  to  point  that  powers  not  granted  to 
Congress  are  reserved  to  the  States,  and  State  may  exact  license  fee  from 
foreigners  for  privilege  of  working  mines;  Lick  v.  Faulkner,  25  Cal.  422, 
as  to  power  of  Congress  to  make  treasury  notes  legal  tender;  Thayer  v. 
Hedges,  23  Ind.  146,  on  same  point ;  McCormiok  v.  Humphrey,  27  Ind.  154, 
as  to  power  of  Congress  to  provide  for  transfer,  before  judgment,  of  causes 
within  jurisdiction  of  United  States  courts;  Lafayette  etc.  R.  R.  Co.  v, 
Gei^er,  34  Ind.  213,  as  to  grant  of  power  to  State  legislature;  Hancock  v. 
Yaden,  121  Ind.  370,  373, 16  Am.  St.  Rep.  399,  401,  23  N.  E.  254,  255,  holding 
constitutional,  act  of  legislature  prohibiting  contracts  waiving  right  to  pay- 
ment in  lawful  medium  of  payments;  Dupuy  v.  Bemiss,  2  La. -Ann.  514, 
upholding  jurisdiction  of  Circuit  Court  of  United  States  in  actions  between 
citizens  of  different  States;  George  v.  Concord,  45  N.  H.  443,  447,  uphold- 
ing constitutionality  of  legal  tender  acts;  so,  also,  in  Metropolitan  Bank 
V.  Van  Dyck,  27  N.  Y.  437,  476 ,  The  Legal  Tender  Cases,  52  Pa.  St.  65,  88, 
discussing  general  subject;  Chartiers  etc.  Co.  v.  McNamara,  72  Pa.  St. 
285,  13  Am.  Rep.  680,  where  acts  of  Congress  relating  to  taxation  and 
revenue  considered  and  compared. 

Wben  statute  is  plain  and  ambiguous,  constniction  Is  uinecessary. 

Approved  in  Kerr  v.  State,  33  Okl.  115,  124  Pac.  286,  holding  that  sec- 
tion of  Constitution  intended  to  limit  amount  of  indebtedness  to  be  as- 
sumed ;  Atlantic  Coast  Line  R.  Co.  v.  Richardson,  121  Tenn.  460,  117  S.  W. 
499,  where  injury  to  property  occurred  outside  State  where  action  was 
bron^ht,  court  had  no  jurisdiction;  Grass  v.  Big  Creek  Development  Co., 
75  W.  Va.  734,  84  S.  E.  756,  applying  rule  in  construing  covenants  of  oil 
and  gas  lease;  Central  Banking  &  Security  Co.  v.  United  States  Fidelity 
etc.  Co.,  73  W.  Va.  202,  51  L.  R.  A.  (N.  S.)  797,  80  S.  E.  123,  holding  that 
sureties  on  additional  bond  given  liable  on  suit  for  contribution  brought 
by  surety  on  original  bond  after  his  payment  of  liability;  Layne  v.  Chesa- 
peake etc.  Ry.  Co.,  66  W.  Va.  614,  67  S,  E.  1106,  construing  section  of  code 
of  West  Virginia  in  reference  to  extension  of  time  to  prepare  bills  of 
exception;  White  v.  Bailey,  65  W.  Va.  576,  23  L.  R.  A.  (N.  S.)  282>  64 
S.  E.  1021,  construing  deed  as  to  clause  therein  reserving  lien  for  main- 
tenance, where  grantee  abandoned  land. 

What  is  indebtedness  within  meaning  of  prohibitions  against  munici- 
pal indebtedness.    Note,  44  Am.  St.  Rep.  232. 

Presumption  against  statutory  authority  to  commit  nuisance.    Note, 
•  70  L.  R.  A.  588. 

Effect  of  legislative  authority  on  liability  for  private  nuisance.    Note, 
1  L.  R.  A.  (N.  S.)  122. 


2Cr.406  NOTES  ON  U.  S.  REPORTS.  212 

« 

Local  or  statutory  authority  as  justification  for  a  nuisance.    Note,  "^ 
16  E.  B.  0.  583. 

Miscellaneous.  Cited  to  effect  that  mortgage  is  conveyance  and  passes 
property  conditionally  to  mortgagee:  Porter  v.  Greene,  4  Iowa,  574,  Bab- 
cock  V.  Hoey,  11  Iowa,  377,  United  States  v.  Hawkins,  4  Mart.  (La.) 
(N.  S.)  330,  Pickett  v.  Buckner,  45  Miss.  244,  Bank  of  Muskingum  v.  Car- 
penter's Admrs.,  7  Ohio  (pt.  I),  70,  28  Am.  Dec.  620,  Holmes  v.  Gardner, 
50  Ohio  St.  176,  33  N.  E.  646 ,  and  Jordan  v.  Peak,  38  Tex.  442 ,  to  point 
that  construction  is  not  to  be  retrospective;  Boyce  v.  Holmes,  2  Ala.  56, 
Thome  v.  San  Francisco,  4  Cal.  136,  and  Mussey  v.  Noyes,  26  Vt.  474,  as 
to  distinction  between  general  and  partial  assignment. 

2  Cr.  406,  2  L.  Ed.  320,  UNITED  STATES  v.  SOHOONEB  SALLT. 

Question  of  forfeiture  of  vessel  for  violation  of  act  prohibiting  slave 
trade  is  within  Jurisdiction  of  admiralty,  and  trial  is  not  to  be  by  Jury. 

Approved  in  Four  Hundred  and  Forty-three  Cans  of  Frozen  Egg  Pro- 
duct V.  United  States,  226  U.  S.  180,  57  L.  Ed.  178,  33  Sup.  Ct.  50,  hold- 
ing Federal  court  decree  dismissing  libel  for  condemnation  of  food  prod- 
ucts seized  on  land  for  violation  of  pure  food  act  is  reviewable  on  error 
and  not  by  appeal;  United  States  v.  Schooner  Betsey  and  Charlotte,  4  Cr. 
446,  2  L.  Ed.  674,  following  rule ;  The  Sarah,  8  Wheat.  394,  5  L.  Ed.  644, 
holding  that  where  libel  charges  seizure  on  water  navigable  from  sea,  and 
it  appears  seizure  was  made  on  land,  court  cannot  direct  trial  by  jury 
without  amendment;  Waring  v.  Clarke,  5  How.  458,  12  L.  Ed.  234,  apply-* 
ing  principle  to  case  of  collision  on  Mississippi  river;  New  Jersey  Steam 
Navigation  Co.  v.  Merchants'  Bank,  6  How.  388,  12  L.  Ed.  484,  upholding 
admiralty  jurisdiction  over  contracts  of  affreightment  to  be  executed  on 
high  seas;  dissenting  opinion  in  The  Steamboat  Magnolia,  20  How.  334, 
15  L.  Ed.  926,  majority  holding  jurisdiction  to  extend  to  case  of  collision 
on  river  navigable  from  sea  above  tide  water;  De  Lovio  v.  Boit,  2  Gall. 
474,  Fed.  Cas.  3776,  holding  Admiralty  courts  to  have  concurrent  jurisdic- 
tion with  common-law  courts  over  maritime  contracts ;  The  Wave,  Blatchf . 
&  H.  240,  Fed.  Cas.  17,297,  holding  jurisdiction  to  extend  to  case  of  sal- 
vage on  waters  within  boundaries  of  a  State;  Slocum  v.  Wheeler,  1  Conn. 
446,  to  point  that  seizures  to  give  admiralty  jurisdiction  must  be  on  navi- 
gable water;  Novion  v.  Hallett,  16  Johns.  347,  holding  no  action  lies  at 
common  law  for  illegal  seizure  on  high  seas;  United  States  v.  Wiltberger, 
5  Wheat.  115,  5  L.  Ed.  48 ,  The  Eagle,  8  Wall.  26,  19  L.  Ed.  370,  and 
Anonymous,  1  Gall.  25,  Fed.  Cas.  444,  discussing  general  subject  and  col- 
lecting authorities;  People  v.  Tyler,  7  Mich.  274,  wJiere  constitutionality 
of  acts  extending  admiralty  jurisdiction  to  great  lakes  considered  and 
denied. 

2  Cr.  406,  2  L.  EO.  320,  BAIUTF  v.  TIPPINO. 

Citation  mnnt  issue  with  writ  of  error. 

Cited  in  Villabolos  v.  United  States,  6  How.  90,  12  L.  Ed.  356,  holding 
that  when  entry  of  appeal  is  made,  and  no  citation  served  within  time 
required,  appeal  will  be  dismissed  on  motion. 


213  NOTES  ON  U.  S.  REPORTS.  2  Cr.  407^44 

Distinguished  in  Naylor  v.  Phillips,  3  Stew.  210,  where  appellant  vol- 
ontarily  appeared. 

Practice   and   procedure   governing   transfer   of   causes   to    Federal 
Supreme  Court  for  review.    Note,  66  L.  B.  A.  844. 

2  Cr.  407-418,  2  L.  Ed.  320,  TELFAIB  v.  STEAD'S  .EXE0UTOE8. 

Landi!  of  deceased  debtor,  in  Oeorgia,  are  liable  in  equity  for  payment 
of  his  debts^  witbout  "^""g  heirs  parties  to  suit. 

Cited  in  Alston  v.  Rowles,  13  Fla.  116,  under  statute ;  so,  also,  in 
Coombs  V.  Jordan,  3  Bland  Ch.  307,  22  Am.  Dec.  255 ;  dissenting  opinion  in 
McArthur  v.  Porter,  1  Ohio,  107,  majority  holding  that  where  vendor  hav- 
ing lien  for  purchase  pric^  of  land  obtains  judgment  u^on  which  land  is 
sold,  the  lien  does  not  pass  to  the  purchaser  and  so  cannot  be  set  up 
against  widow's  claim  of  dower;  Mauldin  v.  Gossett,  15  S.  C.  580,  discuss- 
ing general  subject;  Carey  v.  Roosevelt,  91  Fed.  568,  following  assets  of 
estate  into  hands  of  distributees,  to  pay  debts. 

Miscellaneous.  Cited  in  Quong  Wing  v.  Kirkendall,  223  U.  S.  64,  56 
L  Ed.  352f  32  Sup.  Ct.  192,  to  point  that  court  will  not  consider  point  not 
raised  in  discussing  validity  of  Montana  laundry  license  tax. 

2  Or.  41»-444,  2  L.  Ed.  324,  GBAVES  v.  BOSTON  MARINE  INS.  OO. 

One  partner  effecting  insurance  in  own  name  on  property  on  board  Tetssel 
cannot  recovw  indenmity  for  loss  sostsdned  by  his  flrnt 

Approved  in  American  Livestock  etc.  Co.  v.  Great  Northern  Ry.  Co., 
48  Mont.  504,  138  Pac.  1104,  holding  one  number  of  pool  cannot  sue  alone 
where  damajge  is  to  all  those  belonging  to  pool  jointly;  Durand  v.  Thouron, 
1  Port.  245j^  as  to  indemni^  for  loss  of  property  left  with  insured  for 
sale;  Batre  v.  Durand,  1  Port.  255,  under  similar  facts;  Merchants'  Ins. 
Co.  V.  Mazaoge,  22  Ala.  179,  as  to  right  of  temporary  occupant  of  prem- 
ises under  decree  of  Court  of  Chancery;  McCord  v.  Scale,  56  Cal.  264, 
holding  evidence  of  interest  of  copartner  inadmissible,  where  complaint 
averred  individual  interest;  Russell  v.  Insurance  Co.,  4  Mass.  84,  hold- 
ing that  under  policy  of  insurance  in  name  of  A  as  agent  of  B,  the  latter 
cannot  recover  for  use  of  C,  whom  he  declares  alone  intereste<f  in  the 
policy ;  Dumas  v.  Jones,  4  Mass.  652 ;  and  Finney  v.  Insurance  Co.,  8  Met. 
351,  41  Am.  Dec.  517,  under  facts  similar  to  those  in  principal  case ;  Peoria 
etc.  Ins.  Co.  v.  Hall,  12  Mich.  210,  and  Wise  v.  Insurance  Co.,  23  Mo.  85, 
holding  policy  of  insurance  to  cover  insurable  interest  of  those  only  who 
are  named  in  the  policy.  So  also  in  Plahto  v.  Insurance  Co.,  38  Mo.  254, 
and  in  Pacific  Ins.  Co.  v.  Catlett,  4  Wend.  82 ;  Manhattan  Ins.  Co.  v.  Web- 
ster, 59  Pa.  St.  230,  98  Am.  Dec.  334,  partner  on  receipt  of  insurance  must 
account  to  firm. 

Distinguished  in  Bartlett  v.  Walter,  13  Mass.  269,  7  Am.  Dec.  144,  where 
plaintiff.  Hirer  of  vessel,  held  to  have  valuable  insurable  interest|  having 
eontracted  with  owner  to  effect  insurance. 


2  Cr.  407-444  NOTES  ON  U.  S.  REPORTS.  /     214 

Policy  of  insurance  will  not  be  reformed  by  equity  after  loss,  upon  doubtful 
proof  of  Intention  of  insured,  or  of  its  communication  to  underwriter. 

Approved  in  Western  Sugar  Refining' Cd.  v.  Helvetia  Swiss  Fire  Ins. 
Co.,  163  Fed.  645,  holding  insurance  policy  will  not  be  reformed  so  as  to 
allow  suit  against  undisclosed  principal;  Sullivan  v.  Louisville  etc.  R.  R. 
Co.,  128  Ala.  94,  30  South.  533,  holding  word  "assigns,"  as  used  in  con- 
tract, does  not  mean  partner;  Murphy  v.  Royal  Ins.  Co.  of  Liverpool,  62 
La.  Ann.  788,  27  South.  148,  holding  assured  accepting  policy  containing 
clause  that  no  officer  can  waive  stipulations  unless  waiver  is  in  writing, 
is  bound  ^hereby;  Merchants'  Mut.  Fire  Ins.  Co.  v.  Harris,  51  Colo.  105, 
116  Pac.  147,  holding  knowledge  of  diversity  of  interests  given  to  agent 
is  imputed  to  insurance  company;  Dearborn  v.  Niagara  Fire  Ins.  Co.,  17 
N.  M.  231,  125  Pac.  608,  holding  where  mi^ake  is  mutual,  courts  will 
reform  policy  so  as  to  include  party,  originally  intended  to  be  insured; 
Carpenter  v.  Providence- Washington  Ins.  Co.,  4  How.  224,  H  L.  Ed.  949, 
refusing  to  confirm  policy  of  insurance,  where  there  was  provision  requir- 
ing notice  of  subsequent  insurance  and  such  notice  had  not  been  given; 
Insurance  Co.  v.  Nelson,  103  U.  S.  549,  26  L.  Ed.  438,  where  amount  of 
proof  sufficient  to  impeach  mortgage  considered;  Andrews  v.  Essex  Ins. 
Co.,  3  Mason,  10,  15,  Fed.  Cas.  374,  denying  ruling  where  mistake  injamit- 
ting  clause  in  policy  did  not  clearly  appear;  Sias  v.  Insurance  Co.,  8  Fed. 
188,  holding  terms  of  insurance  contract,  when  clear,  cannot  be  varied 
by  evidence  of  extrinsic  circumstances;  so,  also,  in  Insurance  Co.  v.  Wil- 
cox &  Gibbs  Guano  Co.,  66  Fed.  730,  25  U.  S.  App.  201,  under  similar 
facts;  Worley  v.  Tuggle,  4  Bush  (Ky.),  175,  as  to  proof  required  to  reform 
a  deed;  Reeve  v.  Insurance  Co.,  23  La.  Ann.  221,  holding  that  in  action 
to  recover  on  policy,  insured  cannot  set  up  his  ignorance  of  clause  against 
storing  inflammable  oils;  Chase  v.  Insurance  Co.,  67  Me.  92,  holding  that 
provisions  in  application  for  policy  cannot  control  policy  itself;  Tesson 
v.  Insurance  Co.,  40  Mo.  36,  37,  93  Am.  Dec.  295,  296,  holding  that  mis- 
take in  policy  must  be  proved  by  clearest  evidence ;  Henderson  v.  Stokes, 
42  N.  J.  Eq.  589,  8  Atl.  719,  as  to  omission  of  clause  in  policy;  Smith  v. 
Alli3,  52  Wis.  348,  9  N.  W.  157,  holding  that  to  impeach  acknowledgment 
of  mortg€ige,  evidence  of  fraud  must  be  clear. 

Distinguished  in  Snell  v.  Insurance  Co.,  98  U.  S.  89,  90,  26  L.  Ed.  54» 
where  insured  never  had  possession  of  policy. 

Reformation  of  contracts.    Note,  66  Am.  St.  Bep.  482. 

Sufficiency   of   evidence   to   warrant   reformation   of  instrument   on 
ground  of  mutual  mistake.    Note,  19  Ann.  Gas.  360. 

Relief  from  mistake  of  law  as  to  effect  of  instrument.    Note,  28 
L.  R.  A.  (N.  S.)  836. 

Equity  will  not  grant  relief  where  there  is  plain,  adequate  and  complete 
remedy  at  law,  though  question  not  raised  by  defendant  in  pleadings. 

Approved  in  Allen  v.  Myers,  1  Alaska,  117^  applying  rule  in  suit  to  quiet 
title  to  mining  claim;  Hipp  v.  Babin,  19  How.  278,  16  L.  Ed.  636,  where 
bill  brought  in  equity  to  recover  real  estate  based  on  purely  legal  title; 


x 


216  HEPBURN  v.  ELLZEY.  ^         2  Cr.  446-453 

Parker  v.  Winnipiseogee  ete.  Co.,  2  Black,  551,  17  L.  Ed.  837,  as  to  action 
for  injury  to  water-power  when  no  allegation  of  irreparable  injury ;  Insur- 
ance Co.  y.  Bailey,  13  Wall.  621,  20  L.  Ed.  503,  refusing  to  order  cancel- 
lation of  policy  on  ground  that  representations  were  fraudulent,  where  ' 
these  representations  can  be  used  in  suit  at  law  upon  the  policy;  Baker 
V.  Biddle,  1  Bald.  407,  416,  420,  Fed.  Cas.  764,  holdii^  bill  for  account  not 
to  lie  where  account  has  been  rendered  and  received;  Berry  v.  Ginaca,  ^ 
Sawy.  396,  5  Fed.  481,  where  complainant  failed  to  establish  right  to 
vendor's  lien;  Dugan  v.  Cureton,  1  Ark.  42,  31  Am.  Dec.  733,  734,  holding 
mere  failure  to  perform  contract  not  ground  for  equitable  relief  against 
payment. 

Distinguished  in  Oelrichs  v.  Spain,  15  Wall.  228,  21  L.  Ed.  44,  holding 
that  although  action  at  law  may  be  maintained  on  injunction  bond,  equity 
must  still  settle  rights  of  obligees;  Pierpont  v.  Fowle,  2  Wood.  &  M.  29, 
Fed.  Cas.  11,162,  as  to  violation  of  copyright,  equitable  action  being  more 
effective. 

Retention  of  policy  as  waiver  of  mistake  or  fraud  of  insurer  or  agent. 
Note,  67  L.  R.  A.  726,  789. 

Rules  for  construing  insurance  policies.    Note,  14  E.^  R.  0.  16, 

2  Cr.  445-153,  2  I«.  Ed.  332,  HEPBURN  ▼.  ELI2ET. 

District  of  OolnmUa  Is  not  *'a  State,"  and  its  citlsens  cannot  sue  in  TMted 
States  courts  as  citizens  of  any  State. 

Approved  in  Ex  parte  Massachusetts,  197  U.  S.  487,  40  L.  Ed.  848,  26 
Sap.  Ct.  612,  denying  prohibition  as  ancillary  to  suit  between  citizen  of 
District  of  Columbia  and  citizens  of  another  State;  Downes  v.  Bidwell, 
182  U.  S.  269,  46  L.  Ed.  1096,  21  Sup.  Ct.  776,  holding  Porto  Rico  not  part 
of  United  States  within  meaning  of  tariff  clause  of  Constitution ;  Clark  v. 
Southern  Pac.  Co.,  176  Fed.  126,  citizen  of  territory  of  Arizona  is  not  citi- 
zen of  State  so  as  to  confer  Federal  jurisdiction  on  accounfof  diversity 
of  citizenship ;  Kuchler  v.  Greene,  163  Fed.  97,  to  oust  court  of  jurisdiction 
on  account  of  diversity  of  citizenship,  party  in  question  must  be  indispen- 
sable one;  Iowa  etc.  Min.  Co.  v.  Bliss,  144  Fed.  466,  where  alien  sued  non- 
resident guaranty  corporation  on  bond  in  which  principal  held  guaranty 
company  harmless  from  liability  on  bond,  and  in  same  action  plaintiff 
sought  to  hold  principal  for  the  embezzlement  for  which  bond  sued  on,  con- 
troversy was  removable,  regardless  of  principal's  citizenship;  Laden  v. 
Meek,  130  Fed.  879,  66  C.  C.  A.  361,  allegation  in  removal  petition  that 
certain  of  petitioners  are  residents  of  State  other  than  that  of  plaintiff's 
'  citizenship,  and  that  none  of  petitioners  are  residents  and  citizens  of  State 
whereof  plaintiff  is  citizen,  is  insufficient;  United  States  v.  Whelpley,  126 
Fed.  617,  holding  28  Stat.  963,  does  not  prohibit  transportation  of  lottery 
tickets  from  a  State  to  the  District  of  Columbia;  United  States  v.  Ames, 
.95  Fed.  466,  holding  territories  are  not  "States"  within  lottery  act,  28 
Stat.  963;  Robinson  v.  Peru  Plow  etc.  Co.,  1  Okl.  149,  31  Pac.  991, 
arguendo;  New  Orleans  v.  Winter,  1  Wheat.  94,  4  L.  Ed.  46,  holding  a 
territory  not  a  State  for  purpose  of  suing  in  United  States  courts;  Scott 


2  Cr.  445-453  NOTES  ON  U.  S.  REPORTS.  216 

V.  Jones,  5  How.  377,  12  L.  Ed.  197,  holding  that  Supreme  Court  of  United 
States  has  not  jurisdiction  to  try  the  question  as  to  whether  a  political 
body  passing  a  law  was  a  State;  Barney  v.  Baltimore  City,  6  Wall.  287, 
18  L.  Ed.  827,  under  facts  similar  to  principal  case;  dissenting  opinion  in 
Texas  v.  White,  7  Wall.  737,  19  L.  Ed.  241,  majority  holding  citizens  of 
Texas  during  reconstruction  period  to  be  citizens  of  "a  State'';  Railroad 
Co.  V.  Harris,  12  Wall.  86,  20  L.  Ed.  359,  holding  railroad  company  extend- 
ing into  the  District  of  Columbia  amenable  to  courts  of  the  District  for 
injuries  to  a  citizen  of  Washington;  Metropolitan  R.  -R.  v.  District  of 
Columbia,  132  U.  S.  9,  33  L.  Ed.  234,  10  Sup.  Ct.  22,  but  holding  District 
to  be  a  municipal  corporation  capable  of  suing  and  being  sued;  Hooe  v. 
Jamieson,  166  U.  S.  397,  398,  41  L.  Ed.  1050,  17  Sup.  Ct.  597,  holding  citi- 
zen of  District  cannot  sue,  although  joined  with  competent  person  as 
coplaintiff;  Picquet  v.  Swan,  5  Mason,  65,  Fed.  Cas.  11,134,  as  to  action 
by  alien  against  citizen  of  District;  Prentiss  v.  Brennan,  2  Blatchf.  164, 
Fed.  Cas.  11,385,  and  in  Cissel  v.  McDonald,  16  Blatchf.  152,  Fed.  Cas. 
2729,  denying  petition  for  removal  from  State  court  to  Circuit  Court,  of 
action  by  citizen  of  District  against  a  subject  of  Great  Britain;  Land  Co. 
y.  Elkins,  22  .Blatchf.  204,  20  Fed.  546,  where  necessary  defendant  was 
citizen  of  District';  Watson  v.  Brooks,  8  Sawy.  320,  321,  13  Fed.  543,  544, 
as  to  citizens  of  a  territory;  Darst  v.  City  of  Peoria,  13  Fed.  564,  as  to 
removal  to  Circuit  Court  on  application  of  citizen  of  territory;  Seddon  v. 
Virginia  etc.  Co.,  36  Fed.  8;  suit  against  corporation  and  directors  is  not 
removable  where  one  of  directors  is  citizen  of  District  of  Columbia;  Myer 
V.  Herrera,  41  Fed.  66,  holding  Circidt  Court  has  no  jurisdiction  of  action 
between  citizen  and  alien  temporarily  resident  in  same  State;  Dunton  v. 
Muth,  45  Fed.  394,  as  to  removal  from  territorial  court ;  Qrether  v.  Wright, 
75  Fed.  753,  43  U.  S.  App.  770,  upholding  power  of  Congress  to  exempt 
bonds  of  District  of  Columbia  from  taxation  within  the  United  States; 
dissenting  opinion  in  McElvain  v.  Mudd,  44  Ala.  65,  majority  holding  Con- 
federate State  after  ordinance  of  secession  to  be  a  State  within  meaning 
of  constitutional  prohibition  on  States  against  impairing  obligation  of  con- 
tracts ;  Shorter  v.  Cobb,  39  Ga.  299,  holding  that  United  States  courts  will 
not  review  statute  passed  by  State  when  in  rebellion;  Binney's  Case,  2 
Bland  Ch.  147,  holding  citizenship  of  individual  members  of  corporation 
must  govern  jurisdiction;  Texas  Pacific  Ry.  Co.  v.  Gay,  86  Tex.  582,  26 
S.  W.  601,  to  the  point  that  United  States  Circuit  Court  could  not  have 
jurisdiction  on  grounds  of  diverse  citizenship,  over  a  corporation  chartered 
by  act  of  Congress;  Draper's  Exrs.  v.  Gorman,  8  Leigh  (Va.),  631,  640, 
holding  that  act  of  Congress  declaring  effect  of  judgments  rendered  in 
State  courts  did  not  apply  to  those  rendered  in  courts  of  District  of 
Columbia;  Smith  v.  United  States,  1  Wash.  Ter.  269,  holding  a  territory 
not  a  State;  dissenting  opinion,  Newcomb  v.  Smith,  2  Pinn.  143,  majority 
holding  constitutional  authorization  of  the  taking  by  States  of  private  . 
property  for  public  use,  to  extend  to  territories.  The  rule  is  also-  approved . 
in  the  following  cases,  discussing  the  general  subject:  McNutt  v.  Bland, 
2  How.  23 ,  11  L.  Ed.  164 ;  Glover  v.  Shepperd,  11  Biss.  576,  15  Fed.  836 ; 
Laird  v.  Insurance  Co.,  44  Fed.  712;  Calhoun  v.  Calhoun,  2  S.  C.  295. 


V 


217  HEPBWRN  V.  ELLZEY.  2  Cr.  44&-453 

See  also  State  t.  White,  23  Tex.  Supp.  613;  State  ▼.  Burke,  33  La.  Ann. 
516. 

Limited  in  Geofroy  v.  Riggs,  133  U.  S.  269,  38  L.  Ed.  645,  10  Sup.  Ct. 
297,  holding  the  District  of  Columbia  to  be  one  of  the  ''States  of  the 
Union,"  within  meaning  of  treaty  r^ulating  taking  of  land  by  descent; 
Talbott  V.  Silver  Bow  Mining  Co.,  139  U.  S.  444,  35  L.  Ed.  212,  11  Sup. 
Ct.  596,  holding  act  of  Congress  providing  that  States  may  tax  national 
banks  extends  to  territories;  The  UUock,  9  Sawy.  642,  19  Fed.  212,  The 
Paiuuna,  Deady,  33,  Fed.  Cas.  10,702,  and  In  re  Bryant,  Deady,  121,  Fed. 
Cas.  2067,  holding  term  "State"  includes  territory  under  act  of  Congress 
regulating  navigation;  Neil  v.  Wilson,  14  Or.  415,  12  Pac.  812,  holding 
power  of  territory  to  r^ulate  pilotage  co-ordinate  with  that  of  State, 


/ 


NOTES 

OKTHX 


UNITED  STATES  REPORTS. 


m  CBAKCH. 


\ 


3  Cr.  1-73,  2  L.  Ed.  Si7.  HUIDEKOFEB  ▼.  DOUOZJUM. 

IiegiaUtiTe  contracts  sbould  be  constraed  accoidlng  to  ordinftrj  mles  of 
cttDtnctiial  constrnctioiL 

Cited  in  Leasure  y.  Wilson,  3  Wntts,  174,  and  Ross  v.  Barker,  5  Watts, 
397,  following  rale;  dissenting  opinion  in  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  611,  9  L.  Ed.  849,  majority  holding  a  right  could  not  be 
implied,  because  not  expressly  forbidden;  dissenting  opinion  in  Rich- 
mond etc.  R.  R.  Co.  V.  Lonisa  R.  R.  Co.,  13  How.  86,  14  L.  Ed.  62,  major- 
ity eonstming  stipulation  restraining  State,  strictly;  in  United  States  v. 
Arredondo,  6  Pet.  749,  8  L.  Ed.  568,  holding  ''in  possession''  of  land  satisfied 
by  oonstractiye  possession;  State  v.  Real  Estate  Bank,  5  Ark.  599,  41  Am. 
Dec.  112,  holding  charter  of  corporation  forfeited  by  assignment  of  all  its 
property;  Jasper  v.  Quarles,  Hardin,  477,  holding  right  of  settler  dates 
from  commencement  of  services  necessary  to  procure  a  certificate;  Stark 
V.  Mather,  Walk.  (Miss.)  193,  if  government  gives  title  to  another  he  is 
trustee  for  first  grantee;  Leavitt  v.  Lovering,  64  N.  H.  608,  15  Atl.  415, 
rejecting  words  to  which  no  effect  consistent  with  statute  could  be  given ; 
Thompson  v.  People,  23  Wend.  579,  in  construing  act  giving  right  to  build 
bridge;  Durer  v.  Boyd,  1  Serg.  &  R.  207,  holding  a  person  obtaining  an- 
other's patent  as  trustee  for  him;  Barnes  v.  Irvine,  5  Watts,  503,  as  to 
settlement  of  land;  Dodson  v.  Cocke,  1  Overt.  322,  subsequent  grantee 
cannot  avoid  prior  grant  for  fraud  against  State;  Weatherhead  v.  Bled- 
soe, 2  Overt.  374,  379,  construing  statute  of  limitations;  Pinson  v.  Har- 
kins,  1  Yerg.  330,  339,  treating  State  as  an  individual;  as  also  in  Neal  v. 
E.  T.  College,  6  Yerg.  194;  Thompson  v.  Phillips,  Bald.  385,  Fed.  Cas. 
13,974,  arguendo. 

Terms  of  law  requiring  two  incompatible  things  must  be  reconciled  witli 
least  possible  change  in  meaning,  and  to  give  expression  to  general  intent. 

Approved  in  State  v.  Earnhardt,  170  N.  C.  727,  86  S.  E.  961,  where 
statute   dictated  uniforms  of  convicts. 

(219) 


3  Cr.  73-92  NOTES  ON  U.  S.  REPORTS.       -  220 

3  Or.  73-92,  2  L.  Ed.  370,  UNITED  STATES  v.  HOOE.  ^ 

Theie  most  be  general  yolantary  awrignmeiit  to  render  delvtor  insolvent 
wltliin  bankrupt  act. 

Approved  in  In  re  McCrtun,  214  Fed.  210,  130  C.  C.  A.  555,  holdinj^ 
not  general  assignment  where  part  of  property  only  assigned;  Missouri- 
American  Electric  Co.  v.  Hamilton-Brown  -Shoe  Co.,  165  Fed.  288,  91 
C.  C.  A.  251,  holding  that  assignment  of  part  of  properties  of  corpora- 
tion is  not  a  general  assignment  so  as  to  bring  it  within  bankruptcy- 
laws;  The  United  States  v.  The  Marshalt  etc.,  2  Brock.  491,  Fed.  Cas. 
15,727,  if  inconsiderable  part  of  property  is  retained,  it  is  question  for 
court:  United  States  v.  Lan^on,  5  Mason,  284,  Fed.  Cas.  15,560,  holding: 
a  smidl  portion  left  out  by  mistake  does  not  defeat  priority;  United 
States  V.  McLellan,  3  Sumn.  352^  Fed.  Cas;  15,698,  holding  conveynnce 
of  all  property,  but  in  distinct  parts,  is  good,  unless  especially  to  evade 
priority;  Conard  v.  The  Atlantic  Ins.  Co.,  1  Pet.  439,  7  L.  E4.  212,  hold- 
ing that  a  bona  fide  general  assignment  defeats  priority;  Huntley  y. 
Kingman,  152  U.  S.  533,  38  L.  Ed.  548,  14  Fed.  Cas.  690,  bona  fide  as- 
signment of  part  of  a  debtor's  property  is  valid;  Bush  v.  United  States, 
8  Sawy.  330,  14  Fed.  323,  holding  confession  of  judgment  is  not  a  volun- 
tary assignment;  Holt  v.  Bancroft,  30  Ala.  201,  holding  an  assignment 
of  all  his  property,  with  fraudulent  intent,  but  by  distinct  deeds,  a  gen- 
eral assignment;  Campbell  v.  The  Colorado  Coal  etc.,  9  Colo,  66,  10  Pac. 
252,  holding  partial  assig^nment  valid;  McLean  v.  Rankin,  3  Johns.  374, 
holding  plaintiff  must  show  that  the  shipment  constituted  the  whole  of 
defendant's  property;  Ewing  v.  Runkle,  20  111.  462,  both  parties  must 
have  fraudulent  intent,  to  invalidate  a  conveyance;  United  States  v.  Bank 
of  U.  S.,  8  Rob.  (La.)  416,  holding  priority  not  defeated  by  partial  assign- 
ments of  all  property;  as  also  in  Marshall  v.  Barclay,  1  Paige  Ch.  161; 
Willing  V.  Bleeker,  2  Serg.  &  R.  225,  and  Downing  v.  Kintzing,  2  Serg. 
&  R.  337,  two  assignments  held  a  general  assignment;  Mussey  v.  Noyes, 
26  Vt.  473,  holding  partial  assignment  valid;  Stanley  v.  Robbins,  36  Vt. 
429,  holding  a  lease  not  an  assignment;  United  States  v.  Couch,  25  Fed. 
Cas.  674,  holding  assignment  of  property  of  firm  and  one  partner,  not 
enough  to  give  priority  to  United  States;  United  States  v.  Wood,  28  Fed. 
Cas.  753,  holding  partial  assignment  gives  no  preference;  dissenting  opin- 
ion in  Winner  v.  Hoyt,  66  Wis.  247,  28  N.  W.  390,  majority  holding  where 
all  ppoi)erty  was  transferred  by  different  mortgages,  it  was  general  assign- 
ment. 

Distinguished  in  Mc Arthur  v.  Chase,  13  Qratt.  691,  holding  "insolvency" 
in  that  statute  meant  insufficient  property  to  pay  debts;  Ex  parte  Hull, 
12  Fed.  Cas.  856,  defining  insolvency  in  statute;  Thelusson  v.  Smith,  2 
Wheat.  424,  4  L.  Ed.  278,  holding  United  States  in  cases  specified  in  act 
of  1799,  has  preference  over  judgment  lien. 

Mortgagor's  remaining  in  poseeaelon  of  property  is  i^per  and  not  evidence 
.of  ftand. 

Cited  in  Almy  v.  Wilbur,  2  Wood.  &  M.  388,  Fed.  Cas.  256,  holdin*?  pos- 
session by  mortgagor  not  evidence  of  fraud;  Bingham  v.  Frost,  6  Bank. 


221  UNITED  STATES  v.  HOOE.      *  3  Cr.  73-92 

Beg.  131y  3  Fed.  Cas.  401^  holding  that  word  ''conveyance''  includes  a 
mortgage;  Malone  v.  Hamilton,  Minor,  289,  where  the  deed  contained  a 
power  of  sale,  and  surplns  was  to  he  paid  to  mortgagor;  The  Planters' 
etc.  Bank  of  Mohile  v.  Willis  &  Co.,  5  Ala.  780,  where  mortgagor  re- 
tained possession  of  the  chattel;  Hempstead  v.  Johnston,  18  Ark.  134,  65 
Am.  Dec.  467,  holding  grantor's  remaining  in  possession  does  not  in- 
vaKdate  trust  deed;  Walters  v.  Whitlock,  9  Fla.  102,  76  Am.  Dec.  613, 
holding  whether  retention  of  possession  of  a  chose  in  action  by  an  assignor 
is  fraud,  is  a  question  of  fact;  Suiter  v.  Turner,  10  Iowa,  523,  holding 
retention  of  possession  of  realty  by  grantor  no  evidence  of  fraud;  Bank 
of  Commerce  v.  Payne,  86  Ky.  464,  8  S.  W.  862,  holding  whether  the 
conveyance  is  fraudulent  depends  on  intent;  Lunt  v.  Whi taker,  10  Me. 
314,  holding  where  mortgagor  retained  possession  of  horse,  mortgagee  had 
good  title  against  a  purchaser;  Wilson  v.  Russell,  13  Md.  530,  71  Am.  Dec. 
648,  holding  that  mortgagor's  remaining  in  possession  does  not  invalidate 
deed;  Dawes  v.  Cope,  4  Binn.  265,  holding  delivery  of  a  bill  of  lading  is 
a  sufficient  transfer  of  possession;  dissenting  opinion  in  Wolf  v.  Farrell, 
3  Brev.  76,  majority  holding  title  passed,  though  mortgagor  of  chattel 
retained  possession;  Rose  v.  Burgess,  10  Leigh  (Va.),  197,  holding  mort- 
gagor's retention  of  possession  of  chattels  does  not  make  it  liable  to  his 
creditors. 

Distinguished  in  Fowler  v.  Merrill,  11  How.  394,  13  L.  Ed.  748,  where 
mortgage  was  recorded;  In  re  Hussman,  2  Bank,  Reg.  140,  12  Fed.  Cas. 
1076,  holding  sale  without  change  of  possession  was  void  against  creditors ; 
Merrill  v.  Dawson,  Hempst.  603,  616,  Fed.  Cas.  9469,  where  sale  was  held 
fraudulent  per  se;  Cobum  v.  Pickering,  3  N.  H.  425,  14  Am.  Dec.  878, 
holding  retention  of  possession  of  chattel  after  absolute  sale  is  prima 
facie  evidence  of  fraud ;  Clow  v.  Woods,  5  Serg.  &  R.  284,  9  Am.  Dec.  854, 
holding  mortgagor's  continuing  in  possession  fraudulent  per  se. 

Mortgagor  retaining  x)ossession  as  a  fraud  on  creditors.    Note,  18 
E.  R.  0.  56. 

Mortgage  to  secure  future  advances  Is  valid. 
Approved  in  In  re  Sunflower  State  Refining  Co.,  183  Fed.  838,  holding 
mortgage  made  by  corporation  to  secure  future  issue  of  bonds  good  as 
against  lien  accruing  afterward,  but  before  bonds  are  issued;  Courier 
Joomal  Job  Printing  Co.  v.  Schaefer-Meyer  Brew.  Co.,  101  Fed.  705,  hold- 
ing future  advance  mortgage  constitutes  continuing  security  up  to  amount 
fixed;  Lawrence  v.  Tucker,  23  How.  27,  16  L.  Ed.  479,  United  States  v. 
Lennox,  2  Paine,  183,  Fed.  Cas.  15,592,  and  Leeds  v.  Cameron,  3  Sumn. 
492,  Fed.  Cas.  8206,  all  following  rule;  Turnbull  v.  Thomas,  1  Hughes, 
176,  Fed.  Cas.  14,243,  holding  a  deed  of  trust  for  future  advances  a  good 
*  lien ;  Perkins  &  Elliot  v.  Mayfield,  5  Port.  187,  where  deed  was  given  to 
secure  one  against  the  consequences  of  suretyship;  Allen  v.  Montgomery 
R.  B.  Co.,  11  Ala.  452,  holding  deed  of  real  estate  for  security  of  bonds 
to  be  issued  not  void  per  se;  as  also  in  Tully  v.  Harloe,  35  Cal.  309,  95 
Am.  Dec.  105;  Peters  v.  Goodrich,  3  Conn.  152,  holding  mortgage  to 
secure  an  indorser  valid;  Crane  v.  Deming,  7  Conn.  397,  mortgage  for 


3  Cr.  73-92  '     NOTES  ON  U.  S.  REPORTS.  \  222 

future  advances  held  good,  where  advancements  were  made  after  subse- 
quent mortgages;  Hubbard  v.  Savage,  8  Conn.  220,  where  mortgage  to 
secure  against  future  liabilities  was  held  good;  Speer  v.  Skinner,  35  111. 
293,  sustaining  mortgage  for  future  advances ;  as  also  in  Collins  v.  Carlisle, 
13  111.  259;  Stewart  v.  English,  6  Ind.  182,  where  a  bona  fide  conveyance 
to  pay  debts  was  sustained;  Grifiith  v.  Bank,  6  Gill.  &  J.  436,  where  deed 
to  indemnify  indorsers  was  held  good  as  against  creditors;  Commercial 
Bank  v.  Cunningham,  24  Pick.  274,  35  Am.  Dec.  323,  holding  like  mortgage 
good;  Robins  v.  Embry,  1  S.  &  M.  Ch.  267,  holding  assignment  not  vitiated, 
because  for  future  advances;  Boisregard  v.  Wall,  1  S.  &  M.  Ch.  430,  hold- 
ing mortgages  given  to  secure  debts  of  a  partnership  valid;  as  also  in 
James  v.  Morey,  2  Cow.  292,  14  Am.  Dec.  485 ,  Hendricks  v.  Robinson,  2 
Johns.  Ch.  308,  holding  bona  fide  assignment  by  debtor  in  insolvent  cir- 
cumstances for  future  advances  good;  Walker  •v.  Snediker,  1  Hoff.  Ch. 
146,  holding  such  a  mortgage  valid,  "but  future  liabilities  not  embraced  by 
a  subsequent  parol  agreement ;  Truscott  v.  King,  6  N.  Y.  159,  holding  when 
a  judgment  to  secure  future  advances  has  been  paid,  it  cannot  be  set  up 
for  subsequent  -advances  as  against  an  intervening  encumbrancer;  Robin- 
son V.  Williams,  22  N.  Y.  383,  holding  such  a  mortgage  is  good  as  against 
creditor  by  judgment  recovered  before  such  advances  became  due;  Young 
V.  Wilson,  27  N.  Y.  363,  holding  mortgage  to  secure  liabilities,  though  not 
specifying  amount,  was  certain  enough;  Sabin  v.  Columbia  Fuel  Co.,  25 
Or.  24,  42  Am.  St.  7.61,  34  Pac.  695,  holding  mortgage  valid  though  it  may 
subsequently  turn  out  that,  at  the  time,  mortgagor  was  unable  to  pay  all 
his  debts;  McGavock  v.  Deery,  1  Cold.  270,  holding  assignment  for  future 
advances  valid;  McCarty  v.  Chalfant,  14  W.  Va.  547,  holding  deed  of 
trust  for  future  advances  valid. 

Distinguished  in  Craig  v.  Tappin,  2  Sand.  Ch.  84,  mortgage  there  not 
reciting  its  object. 

Validity  of  mortgages  to  secure  future  advances.    Note,  20  Am.  Dec. 
659. 

United  States  is  entitled  to  priority  of  payment,  but  has  no  lien. 

Approved  in  People 's  Nat.  Bank  v.  Corse,  133  Tenn.  725,  182  S.  W.  918, 
holding  priority  given  United  States  by  statute  cannot  defeat  bona  fide 
lien;  dissenting  opinion  in  New  York  Terminal  Co.  v.  Gaus,  204  N.  Y.  523, 
98  N.  E.  15,  majority  holding  lien  for  taxes  superior  to  lien  of  mortgage; 
Beaston  v.  Farmers'  Bank  of  Delaware,  12  Pet.  134,  9  L.  Ed.  1029,  holdings 
an  attachment  of  an  individual  not  defeated  by  a  subsequent  attachment 
of  the  United  States;  In  re  Hambright,  11  Fed.  Cas.  316,  2  Bank.  Reg. 
158,  holding  creditor's  valid  prior  lien  prevailed  over  costs  of  bankruptcy; 
United  States  v.  The  Canal  Bank,  3  Story,  81,  Fed.  Cas.  14,715,  this 
priority  rests  on  statute;  Postmaster-General  v.  Robbins,  1  Ware,  169, 
Fed.  Cas.  11,314,  holding  that  widow's  allowance  took  precedence;  Perry 
Manufacturing  Co.  v.  Brown,  2  Wood.  &  M.  454,  Fed.  Cas.  11,015,  holding 
that  where  proceedings  in  insolvency  advanced  to  appointment  of  a  mes- 
senger, this  inchoate  title  was  not  defeated  by  a  subsequent  lien;  United 
States  V.  Wilkinson,  5  Dill.  278,  Fed.  Cas.  16,695,  where  a  purchaser  under 


223  UNITED   STATES  v.  HOOE.  3  Cr.  73-92 

an  attachment  took  free  from  preference;  United  States  v.  McLellan,  3 
Sumn.  353,  Fed.  Cas.  15,698,  holding  conveyance  of  all  his  property  to 
creditors  is  not  a  voluntary  assignment  within  the  statute;  United  States 
V.  Hawkins,  4  Mart.  N.  S.  (La.)  330,  holding  United  States  has  not  pref- 
erence in  an  insolvent  estate  ahove  mortgage  creditor;  Farmers'  Bftnk 
V.  Beaston,  7  Gill  &  J.  426,  28  Am.  Dec.  229,  an  attachment,  operating  as 
a  lien,  takes  priority  over  United  States  where  receiver  was  appointed; 
Watkins  v.  Otis,  2  Pick.  102,  holding  a  foreign  attachment  not  such  a 
one  as  to  give  United  States  priority;  Anderson  v.  State,  23  Miss.  476, 
holding  United  States  has  no  lien;  Finney  v.  Steamboat  Fayette,  10  Mo. 
619,  to  point  that  United  States  has  lien  on  conamencement  of  suit;  United 
States  V.  Crookshank,  1  Edw.  Ch.  237,  holding  priority  does  not  exist  in 
relation  to  real  estate  descended  to  heirs;  Bank  of  Muskingum  v.  Car- 
penter, 7  Ohio  (pt.  I),  70,  28  Am.  Dec.  620,  holding  an  equitable  mortgage 
to  be  preferred  to  a  judgment  of  later  date;  Wileocks  v.  Walm,  10  Serg. 

6  R.  380,  holding  a  mortgage  prior  to  general  assignment  cuts  off  prefer- 
ence; State  V.  Harris,  2  Bail.  600,  holding  the  State  not  entitled  to  prior- 
ity at  common  law;  Ex  parte  Waddell,  28  Fed.  Cas.  1314,  holding  decree 
of  bankruptcy  creates  no  lien,  estate  vests  in  assignee;  Savings  Society 
V.  Multnomah,  169  U.  S.  428,  42  L.  Ed.  805,  18  Sup.  Ct.  395,  holding  that 
a  mortgage  conveys  an  interest  in  land  and  may  be  taxed;  United  States 
V.  Areola,  24  Fed.  Cas.  850,  holding  interest  of  mortgagee  is  distinct  from 
that  of  mortgagor;  note  to  4  Wheat.  120,  4  L.  Ed.  530,  on  this  subject; 
dissenting  opinion  in  Winner  v.  Hoyt,  66  Wis.  247,  57  'Am.  Bep.  263,  28 
N*.  W.  390,  majority  holding  separate  assignments  covering  all  his  prop- 
erty are  a  general  assignment;  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  441, 

7  L.  Eft.  213,  holding  priority  of  United  States  will  not  divest  a  specific 
lien  such  as  a  mortgage;  Thelluson  v.  Smith,  1  Pet.  C.  C.  196,  198,  Fed. 
Cas.  13,878,  holding  priority  of  United  States  does  not  cut  off  a  judgment 
creditor. 

Distingnished  in  Frame  v.  Bivens,  189  Fed.  790,  holding  mortgage  is 
sufficient  conveyance  to  defeat  right  of  priority;  State  v.  Mississippi  Val- 
ley Trust  Co.,  209  Mo.  492,  108  S.  W.  102,  holding  right  of  priority  does 
not  exist  against  estate  where  estate  is  solvent;  Advance  Thresher  Co.  v. 
Beck,  21  N.  D.  59,  Ann.  Caa.  1913B,  517,  128  N.  W.  '316,  holding  State 
statute  gives  tax  lien  priority  over  all  other  liens  affecting  same  property; 
S.  H.  Hawes  &  Co.  v.  Wm.  R.  Trigg  Co.,  110  Va.  206,  65  S.  E.  554,  holding 
materialmen's  lien  on  ships  sux)erior  to  lien  to  United  States  for  install- 
ments paid  during  construction. 

Priority  of  claims  for  taxes.    Note,  29  L.  B.  A.  280. 

Priority  of  State  of  United  States  in  payment.    Note,  29  L.  B.  A. 
229,  283. 

Whether  costs  may  be  awarded  against  United  States,  query. 

Approved  in  District  of  Columbia  v.  Lyon,  7.  Mackey  (D.  C),  224,  hold- 
ing costs  not  allowed  against  District  of  Columbia  in  criminal  action  in- 
stituted by  it,  when  defendant  is  acquitted;  Hath  way  v.  Roach,  2  Wood. 
&  M.  68,  Fed.  Cas.  6213,  and  Stanley  v.  Schwalby,  162  U.  S.  272,  40  L.  Ed. 


3  Cr.  92-139  NOTES  ON  U.  S.  REPORTS.  224 

966,  16  Sup.  Ct.  761,  holding  United  States  are  not  liable  to  judgment  for 
costs;  Carlisle  v.  Cooper,  64  Fed.  474,  26  U.  S.  App.  240,  holding  in  ab- 
sence of  legislation  by  Congress,  costs  cannot  be  awarded  against  United 
States;  Curtis  v.  Banker,  136  Mass.  360,  refusing  to  give  costs  against  the 
United  States;  United  States  v.  Davis,  54  Fed.  153,  12  U.  S.  App.  47, 
allowing  costs,  by  statute,  in  proceeding  to  recover  excessive  duties. 

Costs  where  United  States  is  a  party.    Note,  16  Am.  Dec.  407. 

Canoe  may  be  removed  ftom  Circuit  to  Supreme  Court  by  irtit  of  error. 

Cited  to  this  point  in  Harrison  v.  Burgess,  1  Hawks,  392. 
Distinguished  in  The  San  Pedro,  2  Wheat.  143,  4  L.  Ed.  206,  holding 
cause  could  not  be  removed  by  writ  of  error. 

• 

Practice  and  procedure  governing  transfer  of  causes  to  Federal  Su- 
preme Court  for  review.    Note,  66  L.  B.  A.  842,  846. 

Effect  of  insolvency  statutes  on  mortgage  or  sale  preferring  creditors. 
Note,  37  L.  B.  A.  485. 

Miscellaneous.  Cited  in  Enders  v.  Swayne,  8  Dana,  111,  but  not  in 
point.  Cited  generally  in  United  States  v.  Wilkinson,  5  Dill.  277,  Fed. 
Cas.  16,695. 

3  Cr.  92-06,  2  I*.  Ed.  876,  PEYTON  v.  BBOOKB. 

Judgment  for  costs  includes  all  costs,  prior  or  subsequent  to  its  rendition. 

Cited  in  Blake  v.  Hawkins,  19  Fed.  205,  holding  that  a  judgment  opens 
to  include  commissions  of  clerk;  Windrum  v.  Parker,  2  Leigh  (Va.),  366, 
holding  a  party  having  taken  one  execution  can  take  another  at  his  own 
costs. 

3  Cr.  97-139,  2  L.  Ed.  377,  UIMBEBT  v.  PAINE. 

A  devise  of  all  one's  estate  carries  fee  without  words  of  inlieiltaace, 

Bilger  v.  Nunan,  199  Fed.  660;  118  C,  C.  A.  23,  holding  that  devise  giv- 
ing wife  all  estate,  both  real  and  personal,  to  have,  hold,  use  and  dispose 
of,  with  full  power  and  authority  to  sell,  despite  attempted  disposition 
of  any  remainder  at  her  death,  carries  fee;  Clay  v.  Chinault,  108  Ky. 
92,  55  S.  W.  733,  holding  absolute  power  of  disposition  when  contained 
in  will  conveys  fee ;  Roberts  v.  Lewis,  153  U.  S.  377,  38  L.  Ed.  750,  14  Sup. 
Ct.  946,  construing  the  words  "all  my  estate,  real  and  personal,"  etc., 
in  a  devise  to  carry  a  fee;  Denechand  v.  Berry,  48  Ala.  605,  construing 
words  ''all  property"  in  a  statute  to  mean  everything  capable  of  owner- 
ship; Robinson  v.  Randolph,  21  Fla.  637,  644,  holding  word  ''property" 
in  a  devise  carries  fee;  Fogg  v.  Clark,  1  N.  H.  167,  holding  "all  my 
landed  property"  in  a  will  conveyed  a  fee;  Den  v.  Schenck,  8  N.  J.  L. 
39,  where  words  "all  my  real  estate"  were  followed  by  qualifying  clause, 
held  devisee  took  fee  subject  to  qualification;  Jackson  v.  Robins,  16  Johns. 
588,  a  devise  of  "all  his  estate"  to  B,  and  in  case  of  her  death  without 
alienation  to  C  B,  takes  a  fee ;  Bradstreet  v.  Clarke,  12  Wend.  661,  devise 
to  executors  of  my  "landed  estate"  gives  a  fee;  Fox  v.    Phelps,  20  Wend. 


225  HODGSON  v.  BUTTS.  3  Cr.  140-158 

445,  holding  a  devise  "of  my  estate"  carries  fee;  dissenting  opinio"irin 
French  v.  M'llhenny,  2  Binn,  19,  majority  held  a  devise  "of  his  planta- 
tion" carried  fee;  Campbell  v.  Carson,  12  Serg.  &  R.  55,  holding  a  devise 
of  *'all  lands  to  be  by  her  fully  possessed"  carried  fee;  dissenting  opinion 
in  Steele  v.  Thompson,  14  Serg.  &  R.  92,  majority  held  devise  of  "planta- 
tion" carried  life  estate;  Waterman  v.  Greene,  12  R.  I.  484,  holding  devise 
of  my  "mill,  land,"  etc.,  took  fee;  Troth  v.  Robertson,  78  Va.  55,  "estate" 
in  statute  includes  real  and  personal  property;  Byers  v.  Fowler,  12  Ark. 
2S6,  54  Am.  Dec.  288,  arguendo. 

Distinguished  in  Wright  v.  Denn,  10  Wheat.  235,  6  L.  Ed.  311,  where 
words  **all  the  rest  of  my  lands  and  tenements"  carried  only  a  life 
estate;  Bcal  v.  Holmes,  6  Har.  &  J.  225,  holding  ''all  thiit  tract  of  land" 
carried  only  a  life  estate. 

Devise  or  bequest  for  life  with  power  of  disposal.    Note,  189  Am.  St. 
Rep.  115. 

Iiittle  aid  can  be  had  tram  adjudged  casee  in  construing  wllla. 

Cited  to  this  pbint  in  Rosenberg  v.  Frank,  58  Cal.  411,  and  Le  Breton 
V.  Cook,  107  Cal.  416,  40  P^.  553. 

Meaning  of  adjudged  words  should  be  adhered  to  In  construing  will. 

Approved  in  Kean  v.^Roe,  2  Harr.  (Del.)  116,  29  Am.  Dec.  848,  giving 
technical  words  in  will  their  technical  meaning. 

Pxtmary  purpose  In  Interpretation  of  wills  is  to  ascertain  testator's  intent. 

Approved  in  In  re  Henderson's  Estate,  161  Cal.  357, 119  Pac.  498,  holding 
loose  use  by  testator  of  technical  terms  does  not  prevent  distribution  of 
realty  as  well  as  personalty  to  persons  mentioned  as  "residuary  legatees"; 
In  re  Lotzgesell  's  Estate,  62  Wash.  359,  113  Pac.  1108,  where  in  clause  dis- 
posing of  livestock,  agricultural  implements,  etc.,  words  "and  all  personal 
property"  were  used,  and  testator  left  money  not  otherwise  disposed  of, 
this  clause  included  it. 

Requisites  to  disherison  of  heir.    Note,  9  £.  R.  0.  297. 
Alien's  right  to  inherit.    Note,  81  L.  B.  A.  178. 

Miscellaneous.  Cited  in  Boone  v.  Chiles,  10  Pet.  212)  9  L.  Ed.  400, 
apparently  not  in  point;  Johnson  v.  Georgia  Loan  etc.  Co.,  141  Fed.  597, 
bona  fide  purchaser  of  lands  previously  conveyed  by  grantor  must  allege 
and  prove  want  of  notiee  and  payment  of  purchase  money  independently 
of  recitals  in  deed. 

S  Cr.  140-168,  2  I*.  Ed.  391,  HOXKWON  T.  BUTTS. 

Chattel  mortgagee  of  Tessel  acknowledged  before  bat  two  witnesses  only 
Is  Toid  as  to  creditors  and  subseaoent  purchasers. 

Approved  in  Hobbs  v.  Young,  30  Okl.  276,  120  Pac.  948,  chattel  mort- 
gage not  having  been  recorded  prior  to  purchase  by  another  of  same 
chattels,  question  of  consideration  paid  for  purchase  cannot  be  entered 
into;  Bank  of  the  United  States  v.  Lee,  13  Pet.  122,  10  L.  Ed.  89,  holding 

1—16 


/ 


3  Cr.  159-174  NOTES  ON  U.  8.  REPORTS.  226 

a  deed  of  slaves  to  wife,  duly  recorded  good  against  subsequent  creditors ; 
Killough  V.  Steele,  1  Stew.  &  P.  267,  279,  where  an  unrecorded  ehattd 
mortgage  upon  a  valuable  consideration  was  held  not  within  the  statute  of 
frauds;  Baker  v.  Washington,  5  Stew.  &  P.  149,  holding  a  mortgage  upon 
valuable  consideration  need  not  be  registered;  Rushin  v.  Shields,  11  Gku 
640,  56  Am.  Dec.  438,  holding  the  irregular  registration  of  a  deed  is  not 
even  notice;  Shepherd  v.  Burkhalter,  13  Ga.  449,  58  Am.  Dec.  526,  holding 
a  recorded  instrument  to  be  constructive  notice  only  so  far  as  it  appears 
on  the  record;  Walker  v.  Gilbert,  1  Freera.  Ch.  93,  holding  a  deed  not 
duly  registered  not  notice;  Smith  v.  Chamberlain,  2  N.  H.  441,  refusing 
to  extend  statute,  by  requiring  ''competent"  witnesses^;  Gooding  v.  Riley, 
50  N.  H.  409,  restricting  it  to  subsequent  creditors  without  notice;  Simon 
V.  Brown,  3  Yeates,  187,  2  Am.  Dec.  368,  holding  an  unauthorized  record- 
ing is  no  evidence  of  notice;  Heister  v.  Fortner,  2  Binn.  44,  4  Am.  Dec. 
420,  holding  registry  of  a  defectively  proved  deed  is  not  constructive 
notice;  Johnson  v.  Slater,  11  Gratt.  325,  held  a  deed  not  duly  recorded 
is  void  as  to  creditors;  Wolf  v.  Farrell,  3  Brev.  78,  arguendo;  The  Bramen, 
Brown  Adm.  162,  Fed.  Gas.  1805,  holding  mortgagee  is  ^iftble  for  mate's 
wages.  . 

Distinguished  in  McGregor  v.  Hall,  3  Stew.  So  P.  404,  where  mortgagu 
was  left  to  be  recorded;  Hobson  v.  Eassam,  8  Ala.  362,  holding  valid  a 
deed  of  trust  not  recorded  in  statutory  form.       . 

Necessity   and   sufficiency  of   acknowledgment   of  chattel  mortgage. 
Note,  Ann.  Oas.  1915D,  304,  306. 

Master  of  Teasel  lias  rlglit  to  retain  f relgbt  for  debts  dne  blm. 

Cited  in  The  Ship  Packet,  3  Mason,  264,  Fed.  Gas.  10,654,  holding 
master  has  lien  on  freight  for  advances  made  abroad;  Snow  v.  (Goodrich, 
14  Me.  239,  holding  master  pledging  his  individual  credit  to  obtain  cargo 
has  lien  on  it;  IngersoU  v.  Van  Bokkelein,  7  Cow.  679,  holding  master 
has  lien  on  freight  for  liability  incurred;  Starr  v.  Knox,  2  Conn.  228, 
holding  register  of  ship  is  prima  facie  evidence  of  ownership. 

Distinguished  in  Van  Bokkelein  v.  IngersoU,  5  Wend.  325,  holding 
master  has  no  lien  on  freight  for  wages;  Shaw  v.  Godkin,  7  N.  H.  20, 
master  has  no  lien  on  ship's  earnings  as  general  creditor. 

3  Or.  159-174,  2  L.  Ed.  397,  UNITED  STATES  T.  MOS& 

Supreme  Court  lias  appellate  power  only  in  tlie  cases  provided  for  by 
OongtesB. 

Approved  in  United  States  v.  Dickinson,  213  U.  S.  100,  68  L.  Ed.  718,  29 
Sup.  Ct.  485,  certiorari  cannot  be  granted  in  criminal  case  at  instance  of 
United  States  whatever  questions  involved,  nor  for  correction  of  mere 
error;  Fields  v.  United  States,  205  U.  S.  297,  51  L.  Ed.  811,  27  Sup.  Ct.  543, 
holding  that  where  matter  in  dispute  involves  merely  deprivation  of  com- 
missions of  receiver  and  fine,  certiorari  will  not  issue;  New  v.  Oklahoma, 
195  U.  S.  256,  49  L.  Ed.  184,  25  Sup.  Ct.  68,  Supreme  Court  cannot  review 
Oklahoma  judgment  in  capital  case;  Bradford  v.  Southern  Ry.  Co.,  195 


227  UNITED  STATES  v.  MORE.  3  Cr.  159-174 

U.  S.  250,  49  L.  Ed.  181,  25  Sup.  Ct.  55,  writ  of  error  in  forma  pauperis 
cannot  be  prosecuted  from  Circuit  Court  of  Appeals;  Thatcher  v.  United 
States,  212  Fed.  805,  129  C.  C.  A.  255,  holding  that  matter  involving  ques- 
tion of  disbarment  was  reviewable  on  writ  of  error,  and  not  by  appeal; 
£x  parte  Moran,  144  Fed.  598,  600,  determining  jurisdiction  of  Circuit 
Court  of  Appeals  to  issue  habeas  corpus  to  determine  power  of  Oklahoma 
court  to  imprison  one  convicted  of  capital  crime;  United  States  v.  Mar 
Ying  Yuen,  123  Fed.  160,  appeal  by  United  States  does  not  lie  from  com- 
missioner's order  discharging  Chinese  arrested  for  being  unlawfully  in 
this  country ;  dissenting  opinion  in  Ex  parte  France,  176  Ind.  127,  95  N.  E. 
535,  majority  holding  void  act  of  1911,  defining  jurisdiction  of  Supreme 
Court  and  making  decisions  of  appellate  coxctt  final  in  certain  cases ;  In  re 
Kaine,  14  How.  120,  14  L.  Ed.  352,  holding  it  has  no  power  to  review  deci- 
sion of  Circuit  Court  remanding  prisoner  on  writ  of  habeas  corpus  in 
absence  of  statute;  dissenting  opinion  in  Ex  parte  Bradley,  7  Wall.  384, 
386,  19  L.  Ed.  221,  majority  holding  they  had  right  to  review,  by  writ  of 
mandamus,  disbarment  proceedings ;  Baker  v.  Biddle,  1  Bald.  403,  406,  Fed. 
Cas.  764,  holding  United  States  courts  will  not  sustain  suits  in  equity 
where  the  remedy  at  law  is  adequate ;  dissenting  opinion  in  Ex  parte  Crane, 
5  Pet.  200,  204,  219,  8  L.  Ed.  96,  98,  103,  majority  holding  they  had  right 
to  issue  mandamus  compelling  Circuit  Court  to  sign  bill  of  exceptions; 
dissenting  opinion  in  Ex  parte  Lange,  18  Wall.  185,  205,  21  L.  Ed.  882,  888» 
majority  holding  Supreme  Court  will,  by  writ  of  habeas  corpus,  see  if 
Federal  court  had  authority  over  prisoner;  Forsyth  v.  United  States,  9 
How.  572,  13  L.  Ed.  263,  where  right  to  review  criminal  cause  had  been 
given J)y  law;  dissenting  opinion  in  Decatur  v.  Paulding,  14  Pet.  603,  607, 
10  L.  Ed.  612,  614,  majority  holding  Supreme  Court  has  right  to  mandamus 
ministerial  Federal  officer;  Ex  parte  Watkins,  3  Pet.  201,  7  L.  Ed.  652, 
holding  this  court  cannot  revise  proceeding  of  Circuit  Court  in  criminal 
cases;  Daniels  v.  Railroad  Co.,, 3  Wall.  254,  18  L.  Ed.  225,  holding  appel- 
late jurisdiction  depends  on  act  of  Congress ;  dissenting  opinion  in  Tennes- 
see V.  Davis,  100  U.  S.  283,  290,  25"1j.  Ed.  657,  659,  majority  held  provision 
of  Constitution  extending  judicial  power  of  United  States  "to  all  cases 
in  law  and  equity"  embraces  criminal  cases;  United  States  v.  Sanges,  144 
U.  S.  319,  36  L.  Ed.  449,  12  Sup.  Ct.  612,  holding  writ  of  error  does  not 
lie  in  behalf  of  United  States  in  a  criminal  case;  Cross  v.  United  States, 
145  U.  S.  574,  36  L.  Ed.  822,  12  Sup.  Ct.  843,  holding  a  statute  permitting 
appeals  from  District  and  Circuit  Courts  in  capital  cases,  does  not  em- 
brace Supreme  Court  of  District  of  Columbia;  Cross  v.  Burke,  146  U.  S. 
87,  36  L.  Ed.  898,  13  Sup^  Ct.  23,  holding  this  court  has  no  jurisdiction 
over  judgment  of  court  of  District  of  Columbia  on  habeas  corpus;  Chap- 
man V.  United  States,  164  U.  S.  447,  448,  450,  41  L.  Ed.  508,  509,  17  Sup. 
Ct-  77,  78,  holding  they  had  right  to  review,  by  writ  of  error,  judgment 
of  Court  of  Appeals  oi  District  of  Columbia  in  a  criminal  case;  as  also  in 
United  States  v.  Plumer,  3  Cliff.  26,  Fed.  Cas.  16,055,  and  Humphrey  v. 
State,  Minor,  65 ;  Warner  v.  Steamer  Uncle  Sam,  9  Cal.  736,  holding  failure 
of  Congress  to  provide  for  appeals  from  State  court  does  not  affect  their 
original  jurisdiction;  Laverty  v.  Duplessis,  3  Mart.  (0.  S.)  49,  holding 


\    - 


3  Cr.  179-180  NOTES  ON  U.  S.  REPORTS.  250 

S  Cr.  179-180,  2  L.  Ed.  404,  BAY  v.  LAW. 

Decree  of  sale,  after  f ore<dofnire,  is  final,  from  wlilch  appeal  lies. 
Approved  in  Chase  v.  Driver,  92  Fed.  784,  holding  decrees  ordering  and 
confirming  sales  of  property  are  final  and  appealable;  Thomson  v.  Dean, 
7  Wall.  346,  19  L.  Ed.  95,  decree  directing  transfer  of  stock,  and  account 
of  amount  paid  and  to  be  paid  for  same,  is  final;  Marin  v.  Lalley,  17 
Wall.  17,  21  L.  Ed.  596,  holding  from  proceeding  in  its  nature  similar  to 
foreclosure  of  mortgage,  appeal  lies;  Whiting  v.  Bank,  13  Pet.  15,  10  K  Ed. 
38,  holding  a  decree  of  foreclosure  and  sale  a  final  decree;  Bronson  v. 
Railroad  Co.,  2  Black,  531,  17  L.  Ed.  360,  holding  right  to  appeal  cannot 
be  suspended  by  cross-bills  between  others;  The  Steamboat  New  England, 
3  Sumn.  507,  Fed.  Cas.  10,151,  holding  one  party  may  appeal  from  decree 
of  sale,  or  wait  until  definitive  decree;  Railroad  Co.  v.  Swasey,  23  Wall. 
409,  23  L.  Ed.  137,  and  Grant  v.  Insurance  Co.,  106  U.  S.  431,  27  L.  Ed. 
238,  1  Sup.  Ct.  416,  restricting  appeal  to  case  where  amount  due  was 
determined ;  Chicago  etc.  R.  R.  v.  Fosdick,  106  U.  S.  70,  27  L.  Ed.  55,  hold- 
ing decree  final,  though  it  does  not  exhaust  equity  of  redemption;  Key- 
stone Iron  Co.  V.  Martin,  132  U.  S.  93,  96,  33  L.  Ed.  276,  277,  10  Sup,  Ct. 
33,  34,  holding  granting  of  perpetual  injunction  and  ordering  an  account 
not  a  final  decree;  McGourkey  v.  Toledo  &  Ohio  Ry.,  146  U.  S.  545,  36 
L.  Ed.  1083,  13  Sup.  Ct.  172,  decree  final  if  there  is  a  ministerial  reference, 
not  if  judicial;  Desvergers  v.  Parsons,  60  Fed.  150,  23  U.  S.  App.  239, 
decree  terminating  litigation  on  its  merits,  leaving  nothing  but  its  execu- 
tion, is  final;  Weatherford  v.  James,  2  Ala.  176,  though  there  be  a  refer- 
ence to  compute  damages,  decree  is  final;  Ex  parte  Crittenden,  10  Ark. 
356,  370,  decree  of  dower,  appointing  commissioners  to  ascertain  inter- 
mediate rents,  not  final;  Farmers'  Loan  etc.  v.  Canada  etc.  Ry.  Co.,  127 
Ind.  256,  26  N.  E.  785,  decree  of  sale,  proceeds  in  court,  subject  to  lien- 
holders,  is  conclusive  upon  the  parties;  Ringgold's  Case,  1  Bland  Ch.  17, 
discussing  whether  an  appeal  from  ex  parte  proceedings  lies,  not  decided; 
Benedict  v.  Thompson,  2  Doug.  (Mich.)  303,  holding  order  for  appraise- 
ment of  mortgaged  premises  final;  Cromwell  v.  Craft,  47  Miss.  59,  hold- 
ing decree  to  sell  specified  articles  unless  claim  is  paid,  is  final;  Baker  v. 
Lehman,  Wright,  523,  holding  decree  for  sale  of  mortgaged  premises  final; 
Hey  V.  Schooley,  7  Ohio  (pt.  II),  49,  holding  decree  to  sell,  not  opened  by 
appeal  from  decree  confirming;  Royall  v.  Johnson,^  1  Rand.  430,  holding 
decree  as  to  one  defendant  final,  though  action  is  pending  as  to  rest; 
Thorntons  v.  Fitzhugh,  4  Leigh  (Va.),  216,  holding  decree,  with  reserva- 
tion of  further  decree  if  unavailing,  is  final;  Core  v.  Strickler,  24  W,  Va. 
694,  holding  decree  ascertaining  amount  of  debts  and  ordering  sale,  final; 
Suckley  v.  Rotchford,  12  Gratt,  70,  66  Am.  Dec.  245,  discussing  point 

generally. 

Distinguished  in  Deslions  v.  La  Campagnie  Generate  Transatlantique, 
210  U.  S.  113,  52  L.  Ed.  982,  28  Sup.  Ct.  664,  holding  that  until  nature  of 
and  amounts  of  the  claims  involved  are  ascertained  the  decree  was  inter- 
locutory;  Lynham  v.  Hufty,  44  App.  D.  C.  594,  holding  that  in  divorce 
order  made  before  final  decree  awarding  sum  to  wife  to  pay  fee  is  final 
adjudication  of  matter  of  fee ;  The  Palmyra,  10  Wheat.  504,  6  L.  Ed.  376, 


231  LEVY  V.  GADSBY.  3  Cr.  180-186 

holding  decree  not  final  where  damages  were  nnasaessed;  Beebe  v.  Russell, 
19  How.  286,  15  L.  Ed.  669,  holding  appeal  will  not  lie  where  there  is  a 
reference  to  state  an  account;  Burlington  etc.  Ry.  v.  Simmons,  123  U.  S. 
55,  31  L.  Ed.  74,  8  Sup.  Ct.  59,  where  no  sale  was  ordered ;  Gray  v.  Palmer, 
9  Gal.  635,  where  partnership  accounts  remained  to  be  taken;  Cocke  v. 
Gilpin,  1  Rob.  (Va.)  39,  40,  holding  decree  not  final  where  further  action 
of  court  is  necessary ;  Cent.  Trust  Co.  v.  Ry.  Co.,  89  Fed.  27,  holding  while 
decree  of  foreclosure  is  final,  it  did  not  prevent  purchaser  from  filing  a 
supplemental  bill  for  an  injunction  restraining  others  from  bringing  suit 
in  State  court  attacking  validity  of  decree. 

S  Cr.  180-186^  2  Zi.  Ed.  404,  IiEVT  T.  GADSBY. 

Court  has  eizdusive  power  of  deciding  whether  written  contract  is  osurlons. 

Approved  in  Missouri  etc.  Ry.  Co.  v.  United  States,  178  Fed.  17,  101 
C.  C.  A.  143,  holding  error  to  leave  construction  of  written  request  to  jury ; 
Sea  Ins.  Co.  v.  Johnston,  105  Fed.  289,  applying  ride  of  principal  case  in 
suit  on  insurance  policy;  Walker  v.  Bank,  3  How.  72,  11  L.  Ed.  499,  hold- 
ing question  of  usury  depended  on  writing  is  for  court ;  Buttrick  v.  Harris, 
1  Biss.  445,  Fed.  Cas.  2256,  holding  court  should  construe  instrument  in- 
directly involving  usuiy;  Qoddard  v.  Foster,  17  Wall.  142,  21  K  Ed.  595, 
where  agreement  was  deduced  from  correspondence  of  parties;  Higgins  v. 
McCrea,  116  U.  8.  682,  29  L.  Ed.  768,  6  Sup.  Ct.  662,  where  facts  not  dis- 
puted, construction  rules  of  a  board  is  a  question  of  law;  Comfort  v. 
BftUingal,  134  Mo.  288,  35  S.  W.  611,  but  if  jury  construed  correctly  judg- 
ment will  not  be  reversed;  Archibald  v.  Thomas,  3  Cow.  289,  court  has 
exclusive  power  to  decide  whether  written  contract  is  usurious;  Morris  v. 
Ward,  36  N.  Y.  595,  construing  grant;  Dwight  v.  G^rmania  Life  Ins.  Co., 
103  N.  Y.  353,  67  Am.  Rep.  734,  8  N.  E.  658,  contract  of  insurance ;  Deni- 
son  V.  Wertz,  7  Sei^.  &  R.  376,  holding  error  to  leave  construction  of 
written  instrument  to  jury;  also  Evans  v.  Negley,  13  Serg.  &  R.  220,  and 
McFarland  v.  Newman,  9  Watts,  59,  34  Am.  Dec.  602;  Reid  v.  Dodson,  1 
Overt.  \L2,  as  to  military  entry ;  San  Antonio  v.  Lewis,  9  Tex.  71,  legal 
effect  of  written  evidence  a  matter  of  law ;  Lloyd  v.  Scott,  4  Cr.  C.  C.  213, 
Fed.  Cas.  8434,  and  Insurance  Co.  v.  Walsh,  18  Mo.  237,  in  general  dis- 
cussion. 

Construction  of  writing,  when  question  for  court  and  when  for  jury. 
Note,  69  Am.  Dec.  464. 

Usury  is  provable  under  general  issue. 

Approved  in  Ambler  v.  Ruddell,  17  Ark.  140,  holding  defense  of  usury 
may  be  set  up  under  general  issue  in  action  on  oral  promise,  notwith- 
standing statute;  Stockham  vl  Munson,  28  111.  53,  holding  it  is  not  neces- 
sary to  set  up  usury  plea ;  Fulton  Bank  v.  Stafford,  2  Wend.  486 ,  Solomon 
V.  Jones,  3  Brev.  56,  and  Bank  v.  Evans,  9  W.  Va.  382,  holding  usury  may 
be  proved  under  general  issue;  Howard  v.  Thompson,  21  Wend.  334,  hold- 
ing in  action  of  libel  defendant  may  rest  on  probable  cause,  after  abandon- 
ing defense  of  justification;  Irwin  v.  Bell,  1  Overt.  ^6,  holding  plaintiff 
failing  to  prove  under  special  count  may  resort  to  general  count* 


3  Cr.  187-210  NOTES  ON  U.  S.  REPORTS.  232 

Disting^aished  in  Little  v.  Riley,  43  N.  H.  112,  holding  in  suit  on  writ 
of  entry  upon  a  mortgage,  usury  could  not  be  set  up  under  general  issue; 
Barbour  v.  Tompkins,  31  W.  Va.  415,  7  S.  E.  4,  holding  defense  of  usury 
must  be  directly  raised. 

Miscellaneous.  Cited  in  Oates  v.  National  Bank,  100  U.  8.  249,  25  K  Ed. 
584,  Atkinson  v.  Allen,  71  Fed.  59,  36  U.  S.  App.  265,  Gittell  v.  Riley, 
Hardin,  87 ,  Polk  v.  Robertson,  1  Overt.  457,  in  general  discussion. 

If  borrower  agrees  to  pay  same  rate  of  interest  he  receives  on  reloan  by 
himself,  usury  In  second  contaract  makes  first  illegaL 

Cited  in  Newman  v.  Williams,  29  Miss.  222,  holding  where  one  is  to 
receive  more  than  the  legal  rate  for  forbearance,  agreement  is  usurious; 
Pfeister  v.  Building  Assn.,  19  W,  Va.  718,  holding  if  building  association 
advances  money  at  legal  rate  to  one  paying  highest  premium,  loan  is 
usurious. 

Distinguished  in  Nichols  v.  Fearson,  7  Pet.  108,  8  L.  Ed.  625,  holding 
sale  of  note  by  drawee  at  discount  is  not  per  se  usurious;  lOmball  v. 
Athenaeum,  3  Gray,  232,  holding  agreement  to  pay  rate  of  interest  and  to 
give  creditor  notes  and  pay  him  for  disposing  of  them  is  not  usurious. 

3  dr.  187-192,  2  I..  Sd.  406,  MABINE  INS.  OO.  T.  WILSON. 

Surveyor's  reporting  vessel  unsound,  not  refenring  to  time,  will  not  dis- 
charge policy* 

Distinguished  in  Dorr  v.  Ins.  Co.,  7  Wheat.  614,  5  L.  Ed.  537,  this  case 
not  resembling  that  in  evidence  or  pleadings;  as  also  in  Watson  v.  Insur- 
ance Company  of  North  America,  2  Wash.  C.  C.  153,  Fed.  Cas.  17,284i 

3  Or.  193-210,  2  L.  Ed.  408,  WILSON  v.  CODMAN. 

Defendant  not  entitled  to  continuance  upon  death  of  plaintiff,  bat  may 
insist  on  production  of  letters  testamentary. 

Cited  in  Alexander  v.  Patten,  1  Cr.  C.  C.  339,  Fed.  Cas.  171,  and  North 
V.  Clark,  3  Cr.  C.  C.  93,  Fed.  Cas.  10,308,  holding  administrator  bound  to 
give  oyer  of  his  letters,  whenever  demanded,  before  expiration  of  time 
to  plead;  Equitable  Life  etc.  v.  Trimble,  83  Fed.  87,  48  U.  S.  App.  569, 
holding  administrator  may  be  substituted  as  plaintiff  without  filing  sup- 
plf^nental  pleadings;  Taylor  v.  Western  Pacific  R.  R.  Co.,  45  Cal.  337, 
upon  plaintiff's  death,  his  representative  was  substituted  by  ex  parte  order; 
Dale  V.  Roosevelt,  8  Cow.  343,  defendant  may  call  upon  administrator 
d.  b.  n.  to  produce  letters ;  Hobbs  v.  Bush,  2  Dev.  &  B.  512,  where  husband 
moves  to  be  admitted  as  party,  objections  to  validity  of  marriage  must  be 
made  then. 

Immaterial  averment  in  declaration  need  not  be  proved;  such  is  an  aver- 
ment that  note  is  ansiicned  for  value  received. 

Approved  in  Cabiness  v.  Brown,  Minor,  42,  where  variance  was  imma- 
terial and  not  misleading;  Marr  v.  Plummer,  3  Me.  76,  holding  indorsee 
of  promissory  note  entitled  to  recover  against  maker,  without  alleging  it 


233  NOTES  ON  U.  S.  REPORTS.  3  Cr.  210-228 

was  made  for  valuable  consideration ;  Ward  v.  Steamboat  Little  Red,  7  Mo. 
584,  where  averment  was  'alleged  by  way  of  inducement,  and  was  descrip- 
tive of  written  instrument;  Mechanics'  etc.  Bank  v,  Whinfield,  24  Wend. 
418,  holding  immaterial  averment  need  not  be  proved;  dissenting  opinion 
in  dinger  v.  McChesney,  7  Leigh  (Va.),  679,  majority  holding  in  tort 
action  founded  on  contract,  variance  from  contract  alleged  will  be  fatal; 
also  concurring- opinion,  same  case,  page  683,  declaring  Wilson  v.  Codman 
not  applicable;  Averett  v.  Booker,  15  Gratt.  164,  76  Am.  Dec.  204,  in  action 
on  bill  of  exchange  it  is  not  necessary  to  aver  it  was  given  for  value. 

Glalnui  against  agent  cannot  be  offset  against  principal. 

Cited  in  Taylor  v.  Eancaid,  Hard.  88,  holding  usury  between  assignor 
and  assignee  does  not  discharge  obligor;  Def ranee  v.  Davis,  Walk.  (Miss.) 
71,  holding  interest  of  assignee  onaffeoted  by  subsequent  bankruptcy  of 
assignor;  Mott  v.  Hicks,  1  Cow.  538,  IS  Am.  Dec.  557,  one  indorsing  as 
"agent"  not  liable  as  indorser;  Olive  v.  Napier,  Cooke,  14,  holding  action 
of  debt  not  maintainable  by  indorsee  of  promissory  note,  not  under  seal. 

Evidence  of  general    reputation  to    prove    existence  of   partnership. 
Note,  4  Ann.  Oas.  817. 

3  Cr.  210-219,  2  Zi.  Ed.  414,  HAIiLET  T.  JENES. 

American  veaael  entering  TtButh  port  under  streis  of  weather,*  and  com- 
pelled 1»7  French  to  load  French  cargo,  does  not  violate  nonintercoorga  act  of 
1798  ao  as  to  forfeit  insurance. 

Cited  in  Crawford  v.  The  William  Penn,  3  Wash.  C.  C.  493,  Fed.  Cas. 
3373,  holding  hypothecation  of  vessel  in  enemy's  country  to  procure  money 
to  return  valid;  Amory  v.  McGregor,  15  Johlis.  36,  holding  citizen  of  one 
belligerent  may  withdraw  his  goods,  within  a  reasonable  time  after  declara- 
tion of  war ;  New  Orleans  etc.  R.  R.  Co.  v.  Evans,  49  Miss.  788 ,  Pelletreau 
V.  Rathbone,  1  N.  J.  £q.  333 ,  Booth  v.  Cotton,  13  Tex.  362,  in  general  dis- 
eussion. 

Loss  by  capture  under  hostilities  subsequently  arising  as  risk  not  in- 
sured against.    Note,  14  E.  B.  0.  138. 

3  Ct.  220-228,  2  Ii.  Ed.  417,  MIIiZaiaAN  T.  MTTJilTOgB. 

Want  of  proper  parties  not  good  plea  if  bill  suggests  that  they  are  out 
of  court's  jurisdiction. 

Cited  in  Harrison  v.  Urann,  1  Story,  66,  Fed.  Cas.  6146,  holding  joinder 
of  those  persons  whose  citizenship  would  oust  court  of  jurisdiction  dis- 
pensed with;  Bowman  v.  Burnley,  2  McLean,  379,  Fed.  Cas.  1740,  holding 
necessary  parties  within  jurisdiction  must  be  before  court;  Trecothick  v. 
Austin,  4  Mason,  32,  41,  Fed.  Cas.  14,164,  holding  administrators  need  not 
be  parties  if  without  jurisdiction;  West  v.  Randall,  2  Mason,  196,  Fed.  Cas. 
17,424,  holding  interested  party  without  jurisdiction  need  not  be  joined; 
Wood  V.  Dummer,  3  Mason,  317,  Fed.  Cas.  17,944,  holding  parties  dis- 
pensed with  where  they  are  so  numerous  that  it  is  impossible  to  join  all; 
Wormley  y.  Wormley,  8  Wheat.  456,  5  K  Ed.  660,  holding  party  without 


3  Cr.  229-236  NOTES  ON  U.  S.  REPORTS.  234 

jurisdiction  need  not  be  joined;  Lncas  v.  Bank  of  Darien,  2  Stew.  326, 
Reese  v.  Bradford,  13  Ala.  844,  where  court  held  removal  of  party  from 
State  does  not  give  jurisdiction  of  a  legal  demand;  London  etc.  Bank  v. 
Smith,  101  Cal.  423,  36  Pac.  1030,  holding  nonresident  surviving  partner 
need  not  be  a  party;  Etheridge  v.  Vemoy,  71  N.  C.  186,  holding  appear- 
ance of  parties  out  of  jurisdiction  dispensed  with. 

Distinguished  in  Plumb  v.  Bateman,  2  App.  D.  C.  168,  holding  that  bill 
of  resident  creditors  to  subject  realty  within  district  to  payment  of 
decedent's  debts  can  be  maintained  without  joining  nonresident  executors. 

Matter  in  plea  mast  be  complete  bar  to  eqnitj  in  bill. 

Approved  in  Glucose  etc.  Co.  v.  Douglass,  146  Fed.  960,  plea  of  non- 
infringement of  patent  is  not  good  in  suit  in  equity ;  Rhode  Island  v.  Mas- 
sachusetts, 14  Pet.  262,  10  L.  Ed.  448,  holding  proper  pleading  to  bill  con- 
taining no  equity  is  demurrer;  Piatt  v.  Oliver,  1  McLean,  303,  Fed.  Gas. 
11,114,  if  plea  is  not  complete  bar  it  must  be  set  aside;  Sharp  v.  Reissner, 
20  Blatchf.  13,  9  Fed.  447,  plea  denying  infringement  of  patent,  stricken 
out;  Salmon  v.  Glagett,  3  Bland  Ch.  136,  denial  of  facts  not  proper  for  a 
plea. 

Bill  should  not  be  dlamissed  for  want  of  proper  parties. 

Approved  and  applied  in  Berry  v.  Rogers,  2  B.  Mon.  308,  holding  leave 
should  be  given  to  amend,  not  dismiss  absolutely;  Colt  v.  Lasnieri  9  Cow. 
334,  ordering  the  cause  to  stand  over  that  necessary  parties  may  be  added. 

Miscellaneous.    Cited  in  Trescott  v.  Trescott,  1  McCord's  Ch.  433. 

3  Or.  229-236,  2  I*.  Ed.  420,  OOOKE  v.  OBAHAM. 

Upon  oyer,  If  declaration  miadescribes  date  of  bond,  it  is  bad  on  general 
desnurrer. 

Approved  in  Tingey  v.  Carroll,  3  Cr.  C.  C.  694,  Fed.  Cas.  14,066,  holding 
variance  as  to  ''seals''  fatal;  Chilton  v.  People,  66  111.  603,  holding  where 
one  declares  on  a  bond  and  upon  oyer,  instrument  is  unsealed,  variance 
is  fatal;  as  also  in  Deming  v.  Bullitt,  1  Blackf.  241;  Smith  v.  Brown, 
3  Blackf.  26,  proving  of  a  different  date  than  that  alleged,  does  not  sustain 
the  action,  note ;  Palmer  v.  McGinnis,  Hard.  616,  where  the  variance  is  in 
form  only,  must  .demur  specially;  Long  v.  Overton,  7  Mo.  668,  holding  omis- 
sion of  month  in  declaration  a  fatal  variance;  Messer  v.  Smythe,  68 
N.  H.  313,  holding  operation  of  oyer  is  to  make  the  writing  part  of  the 
pleadings;  Church  v.  Feterow,  2  Penr.  &  W.  303,  holding  variance  in  date 
fatal;  Cabell  v.  Hardwick,  1  Call  (Va,),  364,  holding  contract  as  evi- 
denced must  correspond  with  that  declared  on ;  Bennetts  v.  Lloyd,  6  Leigh 
(Va.),  318,  holding  variance  in  date  fatal;  Damarin  v.  Young,  27  W.  Va. 
437,  holding  variance  in  date  between  note  declared  on  and  produced  is 
fatal. 

Distinguished  in  Moses  v.  United  States,  166  U.  S.  678,  ^  L.  Ed.  1122, 
17  Sup.  Ct.  686,  holding  where  trial  is  upon  the  merits  variance  in  date  in 
declaration  and  instrument  is  not  fatal. 


235  HANNAY  v.  EVE.  3  Cr.  242-249 

Judgment  upon  demnrrer  it  against  party  making  first  error. 

Approved  in  United  States  v.  Peralta,  99  Fed.  624,  treating  demnrrer  as 
special  plea  in  suit  to  compel  issuance  of  land  patent;  Aurora  v.  West, 
7  Wall.  93,  19  L.  Ed.  46 ,  United  States  v.  Bank,  10  Fed.  615 ,  Peoria  etc. 
R.  R.  V.  Neill,  16  111.  271,  Tillotson  v.  Stipp,  1  Blackf.  77,  Conner  v.  Pax- 
son,  1  Blackf.  209,  Joy  v.  Simpson,  2  N.  H.  ISl,  Governor  v.  Porter,  4 
Yer^.  192,  and  State  v.  Williams,  8  Tex.  265,  all  holding  court  will  give 
judgment  against  party  whose  pleading  is  first  defective  in  substance; 
Henley  v.  Brush,  33  Ala.  641,  to  show  that  a  visitation  of  a  demurrer  was 
within  mischief  intended  to  be  guarded  against  by  code. 
»  Distinguished  in  Park  v.  Kelly,  49  Fed.  622,  holding  that  a  demurrer  to 
an  answer  den3ring  plaintiff's  power  to  make  the  contract  sued  upon  does 
not  admit  the  facts  therein  alleged  so  as  to  make  them  part  of  the  petition. 

In  construing  bonds,  letter  of .  condition  may  bo  departed  flrom  to  carry 
out  intention. 

Approved  in  Dowiat  v.  The  People,  193  111.  267,  61  N.  E.  1061,  holding 
liquor  dealer's  bond  given  under  Rev.  Stats.,  chap.  43,  §  5,  covers  damages 
from  selling  liquor;  Whitsett  v.  Womack,  8  Ala.  481,  holding  bond  vary- 
ing from  form  prescribed  by  statute  good;  Swain  v.  Graves,  8  Cal.  551, 
holding  court  will  transpose  or  reject  meaningless  words  in  construing  an 
appeal  bond;  Stockton  v.  Turner,  7  J.  J.  Marsh.  192,  holding  a  repugnant 
stipulation  in  a  condition  will  not  change  the  import  of  the  contract ;  Giles 
V.  Halsted,  24  N.  J.  L.  367,  370,  61  Am.  Dec.  669,  671,  holding  though  con- 
dition of  bond  be  meaningless  it  should  be  construed  according  to  the 
intention  of  the  parties;  Roth  v.  Miller,  15  Sei^.  &  R.  107,  holding  sure- 
ties are  as  much  bound  by  the  true  intent  of  the  meaning  of  the  instru- 
ment as  the  principals. 

3  Gr.  2«t-2i9,  2  I*.  BO.  4S7,  KAHHAY  ▼.  EVE. 

AgzMOMBt  m  fraud  of  law  of  UMted  Stataa  la  imenf oroeablo,  and  snbae- 
qniaiit  mfl  of  law  is  immateriaL 

Approved  in  Willcox  v.  Edwards,  162  Cal.  461,  Ann.  Oas.  19130,  1392, 
123  Pac.  278,  holding  that  moneys  paid  on  void  contracts  were  not  recov- 
erable, but  stock  certificates  pledged  to  secure  advancements  made  on  such 
contracts,  not  having  been  applied  for  advancements  before  demand  made 
for  their  return,  are  recoverable;  Piatt  v.  Oliver,  1  McLean,  301,  Fed. 
Cas.  11,114,  holding  agreement  between  persons  not  to  bid  at  sheriff's  sale 
is  void  against  public  policy;  as  also  in  Piatt  v.  Oliver,  2  McLean,  277, 
Fed.  Cas.  11,115;  Tufts  v.  Tufts,  3  Wood.  &  M.  505,  Fed.  Cas.  14,233, 
refusing  specific  performance  of  an  illegal  contract;  Mitchell  v.  Doggett, 
1  Fla.  371,  holding  no  action  can  be  maintained  on  illegal  contract,  after 
statute  illegalizing  is  repealed;  Howell  v.  Fountain,  3  Ga.  184,  46  Am. 
Dec.  422,  holding  no  action  maintainable  on  contract  growing  out  of  im- 
moral or  ill^al  transaction;  as  also  in  Martin  v.  Barstow  Iron  Works,  35 
Ga.  328 ;  Overshiner  v.  Wisehart,  59  Ind.  138,  if  parties  are  in  equal  fault, 
no  relief  given  in  case  of  fraud;  Marienthal  etc.  v.  Shafter,  6  Iowa,  226, 
holding  there  can  be  no  action  on  contract  with  illegal  consideration; 


3  Cr.  249-266  NOTES  ON  U.  S.  REPORTS.  236 

Bank  of  the  United  States  v.  Norvell,  2  A.  K.  Marsh,'  105,  holding  title 
acquired  against  law  not  enforceable ;  Bank  of  Michigan  v.  Niles,  1  Poug. 
412,  41  Am.  Dec.  683,  holding  contract  for  purchase  of  land  by  corpora- 
tion in  excess  of  legal  amount  allowed,  to  be  held  void;  Drexler  v.  Tyrrell, 
15  Nev.  132,  holding  agreement  to  place  property  without  operation  of 
revenue  law  void ;  Chauncy  v.  Yeaton,  1  N.  H.  157,  if  property  is  tortiously 
taken  and  put  to  illegal  use,  owner  cannot  recover  money  received  for  that 
use;  Gulick  v.  Ward,  10  N.  J.  L.  92,  18  Am.  Dec.  394,  holding  contract  con- 
travening an  act  of  Congress  is  void;  Graves -v.  Delaplaine,  14  Johns,  169, 
holding  contract  for  trade,  during  nonintercourse  law,  void,  and  that  no 
recovery  can  be  had  on  it ;  Alwyn  v.  Perkins,  3  Desaus.  Eq.  307,  one  cannolT 
recover  commissions  for  holding  property  of  a  foreigner  to  avoid  foreign 
law;  Hunt  v.  Robinson,  1  Tex.  762,  holding  contract  in  violation  of  land 
laws  unenforceable. 

Distinguished  in  Greffin  v.  Lopez,  5  Mart.  (0.  S.)  165,  where  person  mak- 
ing deed  to  defeat  creditors  was  permitted  to  recover  his  property;  Ker- 
shaw V.  Kelsey,  100  Mass.  566,  97  Am.  Dec.  129,  1  Am.  Bep.  146,  upholding 
lease  of  plantation  in  rebel  State  during  war ;  James  v.  Fulcrod,  5  Tex.  522, 
55  Am.  Dec.  750,  upholding  agreement  where  two  persons  with  honest  in- 
tent agreed  to  purchase  at  a  public  sale,  one  to  bid  for  both. 

Effect  on  contract  made  void  by  statutory  or  constitutional  provision 
•     of  subsequent  repeal  of  such  provision.    Note,  Ann.  Oas.  1913C, 
1398. 

Miscellaneous.  Cited  generally  in  The  M.  M.  Chase,  37  Fed.  711,  Dar- 
rington  v.  Borland,  3  Port.  35,  and  State  v.  Doyle,  40  Wis.  194,  22  Am. 
Bep.  699. 

3  Cr.  24^250,  2  L.  Ed.  429,  MONTALET  ▼.  MURBAY. 

Upon  afflimance  of  Judgment  on  writ  of  error,  coats  are  awarded  as  of 
course. 

Cited  in  Burnham  v.  Rangeley,  2  Wood.  &  M.  422,  Fed.  Cas.'  2177,  hold- 
ing where  case  is  dismissed  for  lack  of  jurisdiction  no  costs  allowed.    See 

4  Cr.  46,  2  L.  Ed.  545,  for  this  case  on  further  hearing. 

ft 

3  Cr.  250-266,  2  L.  Ed.  429,  SILSBY  ▼»  YOUNG. 

Where  In  case  of  insufficiency  of  estate  to  pBj  all  legacies  one  shall  abate,' 
sufficiency  of  estate  is  ascertained  as  of  time  of  distribution. 

Cited  in  Kirkman  v.  Mason,  17  Ala.  139,  where  legacy  was  given  after 
debts  were  paid ;  Allen  v.  Puritan  Trust  Co.,  211  Mass.  420,  L.  B.  A.  19150, 
513,  97  N.  E.  919,  holding  bank  liable  where  depositor  withdrew  funds 
from  his  account  as  administrator  of  estate  to  replace  overdrafts  of  hia 
account  as  an  individual. 

Specific,    demonstrative,    and   general   bequests    defined   and   distin* 
guished.    Note,  140  Am.  St.  Bep.  611. 


237  STRAWBRIDGE  v.  CURTISS,  3  Cr.  267-268 

3  Gr.  267-268,  2  L.  Ed.  485,  STBAWBBIDaE  T.  C70BTISS. 

Each  plaintiff  must  be  capable  of  suing  each  defendant  in  Federal  court* 
Approved  in  Cuebas  y  Arredondo  v.  Cuebas  y  Arredondo,  223  U.  S. 
387,  56  L  Ed.  480,  32  Snp.  Ct.  277,  holding  Federal  court  has  no  jizris- 
diction  where  sole  plaintilf  and  some  defendants  are  aliens,  notwithstand- 
ing other  defendants  are  citizens  of  United  States ;  Sweeney  v.  Carter  Oil 
Co.,  199  U.  S.  257,  50  L.  Ed.  180,  26  Sup.  Ct.  55,  two  citizens  of  different 
States  may  sue  citizen  of  third  State  in  Federal  district  of  latter's  resi- 
dence; Florida  Central  etc.  R.  R.  v.  Bell,  176  U.  S.  332, 333, 44  K  Ed.  491, 492, 
20  Sup.  Ct.  403,  404,  holding  court  has  no  jurisdiction  of  suit  by  citizens 
of  different  States  where  they  assert  joint  claim  to  land ;  State  of  Maine 
Lumber  Co.  v.  Kingfield  Co.,  218  Fed.  905,  refusing  jurisdiction  where  it 
does  not  appear  affirmatively  in  bill  what  are  the  residences  and  citizen- 
ship of  others  who  may  intervene  and  become  parties ;  H.  G.  Baker  &  Bro. 
V.  Pinkham,  211  Fed.  731,  732,  733,  holding  Federal  court  has  jurisdic- 
tion to  remove  suit  where  both  defendants,  one  of  whom  is  an  alien  and 
other  is  resident  of  different  State  than  plaintiff;  Ware-Ejramer  Tobacco 
Co.  V.  American  Tobacco  Co.,  178  Fed,  120,  refusing  jurisdiction  where 
plaintiff  and  one  of  the  defendants  are  not  citizens  of  district  wherein 
suit  is  brought;  Atchison  etc.  Ry.  Co.  v.  Phillips,  176  Fed.  667,  100  C.  C.  A. 
215,  holding  court  had  jurisdiction  where  amended  coniplaint  alleged  eer- 
tain  added  defendants,  although  residents  of  same  State  as  plaintiff  had 
no  interest  in  suit;  A.  B.  Andrews  Co.  v.  Puncture  Proof  Footwear  Co., 
168  Fed.  765,  refusing  jurisdiction  where  one  of  complainants  and  corpo- 
ration defendant  are  citizens  of  same  State;  Anderson  v.  Barsman,  140 
Fed.  U,  Circuit  Court  has  no  jurisdiction  of  suit  against  several  defend- 
ants to  enjoin  diversion  of  water,  where  one  of  defendants  is  citizen  of 
same  State  as  complainant;  Goodwin  v.  New  York,  N.  H.  &  H.  R.  R.  Co., 
124  Fed.  367,  holding  corporation  incorporated  in  different  States  cannot 
be  sued  in  one  of  those  States  by  citizen  of  same  State;  Abel  ▼.  Book, 
120  Fed.  48,  refusing  to  grant  joint  removal  when  one  of  defendant's 
originally  entitled  to  remove  had  waived  right;  Kromer  v.  Everett  Imp. 
Co.,  110  Fed.  24,  denying  Federal  jurisdiction  where  suit  dismissed  as  to 
party  making  citizenship  diverse;  Sengel  v.  Am.  Smelting  etc.  Co.,  110 
Fed.  21,  holding  under  judiciary  act  of  August  13,  1888,  section  1,  suits 
dependent  on  diversity  of  citizenship  for  Federal  jurisdiction  must  be 
brought  where  all  plaintiffs  or  where  all  indispensable  defendants  reside; 
Empire  Min.  Co.  v.  Propeller  Tow  Boat  Co.,  108  Fed.  902,  holding  Federal 
court  has  jurisdiction  of  removed  suit,  though  defendant  removing  suit  is 
nonresident ;  Roberts  v.  Pacific  etc.  Ry.  etc.  Nav.  Co.,  104  Fed.  579,  holding 
Federal  court  has  jurisdiction  of  suit  against  two  defendants,  one  of  whom 
is  an  alien  and  other  citizen  of  different  State  from  plaintiff;  New  Orleans 
V.  Winter,  1  Wheat.  95,  4  L.  Ed.  45,  holding  citizen  of  a  territory  cannot 
sue  a  citizen  of  State  in  these  courts,  though  joined  with  parties  capable  of 
so  suing;  Wormley  v.  Wormley,  8  Wheat.  457,  6  L.  Ed.  661,  holding  court 
will  not  allow  its  jurisdiction  to  be  ousted  by  joinder  or  nonjoinder  of  • 
formal  parties;  Commercial  etc.  Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  64, 
10  L.  Ed.  356,  holding  all  the  corporators  must  be  citizens  of  a  different  - 


3  Cr.  267-268  NOTES  ON  U.  S.  REPORTS.  238 

State  from  the  other  party;  dissenting  opinion  in  Marshall  v.  Baltimore  So 
0.  R.  R.  Co.,  16  How.  340,  14  L.  Ed.  964,  majority  holding  that  averment, 
defendants  are  a  corporation,  created  by  legislature  of  Maryland,  gives 
the  court  jurisdiction ;  Wood  v.  Davis,  18  How.  469,  15  L.  Ed.  461,  holding 
joinder  of  formal  parties  cannot  oust  courts  of  jurisdiction;  Coal  Co.  v. 
Blatchford,  11  Wall  174,  20  L.  Ed.  180,  holding  executors  not  qualified 
because  of  citizenship  cannot  sue,  although  those  they  represent  are  quali- 
fied ;  Case  of  the  Sewing  Machine  Companies,  18  Wall.  574,  21  L.  Ed.  918, 
holding,  where  one  defendant  is  citizen  of  plaintiff's  State,  court  has  no 
jurisdiction;  Peninsular  Iron  Co.  v.  Stone,  121  U.  S.  632,  30  L.  Ed.  1020, 
7  Sup.  Ct.  1010,  1011,  holding,  if  necessary  party  on  both  sides  is  citizen 
of  same  State,  court  has  no  jurisdiction ;  Smith  v.  Lyon,  133  U.  S.  318,  319, 
320,  33  L.  Ed.  636,  637,  10  Sup.  Ct.  304,  s.  c,  38  Fed.  64,  plaintiffs  citizens 
of  different  States  cannot  unite  in  a  suit  in  a  State  of  which  either  is  a 
citizen ;  Hanrick  v.  Hanrick,  153  U.  S.  195,  38  L.  Ed.  686,  14  Sup.  Ct.  836, 
holding  all  plaintiffs  and  defendants  must  be  citizens  of  different  States ; 
Hooe  V.  Jameson,  166  U.  S.  397,  398,  41  L.  Ed.  1050,  17  Sup.  Ct.  597,  hold- 
ing citizen  of  Distriq^t  of  Columbia  canno^  maintain  an  action,  though 
joined  with  a  competenUperson ;  Hubbard  v.  Northern  R.  R.  Co.,  3  Blatchf. 
88,  Fed.  Cas.  6818,  holding  plaintiffs  cannot  be  citizens  of  different  States ; 
Hatch  V.  The  Chicago  etc.  R.  R.  Co.,  6  Blatchf.  113,  Fed.  Cas.  6204,  holding 
no  defendant  can  be  citizen  of  same  State  as  plaintiff;  Brigham  v.  Lud- 
dington,  12  Blatchf.  241,  Fed.  Cas.  1874,  if  suit  is  not  maintainable  without 
proper  parties,  and  bringing  them  in  would  oust  court  of  jurisdiction, 
action  must  be  dismissed;  Petterson  v.  Chapman,  13  Blatchf.  399,  Fed.  Cas. 
11,042,  holding  no  plaintiff  and  defendant  can  be  of  same  State ;  Sawyer  v. 
Switzerland  Marine  Ins.  Co.,  14  Blatchf.  452,  Fed.  Cas.  12,408,  holding 
requisite  jurisdictional  citizenship  must  exist  as  to  each  plaintiff;  Case  v. 
Douglas,  1  Dill.  300,  Fed.  Cas.  2491,  holding  all  the  plaintiffs  must  be 
shown  to  be  citizens  of  another  State ;  Barney  v.  Baltimore,  1  Hughes,  121, 
Fed.  Cas.  1029,  holding  citizenship  of  one  of  the  suitors  in  District  of 
Columbia  does  not  give  jurisdiction;  Ward  v.  Arredondo,  1  Paine,  412, 
Fed.  Cas.  17,148,  holding  joining  of  nominal  parties,  without  requisite 
citizenship,  does  not  oust  court;  Moffat  v. 'Saley,  2  Paine,  105,  Fed.  Cas. 
9688,  holding  plaintiffs  must  be  citizens  of  same  State;  Smith  v.  Rincs, 
2  Sumn.  345,  347,  Fed.  Cas.  13,100,  Circuit  Court  has  jurisdiction  wheitj 
there  are  joint  defendants,  if  all  petition  for  removal ;  Bank  of  Cumberland 
V.  Willis,  3  Sumn.  473,  Fed.  Cas.  885,  all  of  the  incorporators  must  be 
citizens  of  another  State;  New  Jersey  v.  Babcock,  4  Wash.  346,  Fed.  Cas. 
10,163,  holding,  if  State  be  a  party,  the  Circuit  Court  is  without  juris- 
diction and  will  remand  cause,  even  after  it  has  been  docketed;  Kirk- 
patrick  v.  White,  4  Wash.  598,  Fed.  Cas.  7850,  holding  all  of  the  corpo- 
rators must  be  citizens  of  another  State ;  Nesmith  v.  Calvert,  1  Wood.  &  M. 
38,  Fed.  Cas.  10,123,  where  suit  could  be  maintained  alone  against  one 
defendant,  that  others  were  citizens  of  same  State  as  plaintiff,  was  not 
fatal  to  jurisdiction;  Saginaw  Gas  Light  Co.  v.  Saginaw,  28  Fed.  531, 
holding  no  plaintiff  or  defendant  can  be  of  same  State;  Kane  v.  Indian- 
apolis, 82  Fed.  772,  holding  one  joint  defendant  cannot  have  cause  re- 


239  STRAWBRIDGE  v.  CURTISS.  3  Cr.  267-268 

moved,  unless  other  defendant  has  capacity;  Excelsior  Pebble  Phosphate 
Co.  V.  Brown,  74  Fed.  324,  holding  Circuit  Court  has  no  jurisdiction,  where 
plaintiffs  are  nonresidents,  but  only  one  defendant  is  a  resident;  Calder- 
wood  V.  Braly,  28  Colo.  99,  holding  all  defendants  must  be  citizens  of 
another  State  to  authorize  a  removal ;  Howland  Coal  etc.  Works  v.  Brown, 

13  Busli  (Ky.),  687,  holding  court  had  no  jurisdiction  where  corporation, 
one  of  defendants,  Was  of  same  State  as  plaintiff;  Bryant  v.  Rich,  106 
Mass.  192,  8  Am.  Rep.  815,  if  a  defendant  or  plaintiff,  real  party  in  in- 
terest, is  of  same  State,  court  has  no  jurisdiction;  North  River  Co.  v. 
Hoffman,  5  Johns.  Ch.  303,  holding  each  incorporator  must  have  juris- 
dictional citizenship;  Schuyler  v.  Pelisser,  3  Edw.  Ch.  192,  holding  though 
Federal  court  has  no  jurisdiction,  it  cannot  be  enjoined  by  State  court; 
James  v.  Thurston,  6  R.  I.  431,  holding  presence  of  coplaintiff  of  different 
State,  entitled  to  decree,  fatal  to  jurisdiction;  Robb  v.  Parker,  3  S.  C.  70, 
holding  court  has  no  jurisdiction  where  plaintiffs  are  citizens  of  different 
States;  as  also  in  Belknap  v.  Northern  R.  R.  Co.,  26  Vt.  719;  Beery  v. 
Iriek,  22  Gratt.  487,  12  Am.  Rep.  541,  if  any  plaintiff  and  defendant  are 
of  same  State,  case  is  not  removable;  Tuckerman  v.  Bigelow,  24  Fed.  Cas. 
282,  holding  where  interests  are  joint,  each  plaintiff  must  be  comx)etent  to 
sue  each  defendant;  West  v.  Randall,  2  Maison,  197,  Fed.  Cas.  17,424,  and 
Eames  v.  Carlisle,  3  N.  H.  131,  both  following  rule^ 

Distinguished  in  Louisville  R.  R.  v.  Lctson,  2  How.  554,  11  L.  Ed.  376, 
declaring  main  case  was  carried  too  far,  and  that  a  corporation  is  a  citizen 
of  the  State  under  whose  laws  it  is  organized,  though  corporators  be  citi- 
zens of  other  States ;  Northern  &.  R.  Co.  v.  Michigan  C.  R.  R.,  15  How.  248, 

14  L.  Ed.  681,  where  it  is  declared  to  have  been  overruled;  Ober  v.  GFal- 
lagher,  93  U.  S.  205,  23  L.  Ed.  831,  where  it  is  declared  to  have  been  ob- 
viated by  statute;  Sands  v.  Smith,  1  Abb.  (U.  S.)  371,  376, 1  Dill.  293,  297, 
Fed.  Cas.  12,305,  holding  that  an  action  brought  against  a  citizen  of  that 
State,  and  citizen  of  another  State,  latter  voluntarily  appearing,  cognizable 
in  United  States  courts;  Pond  v.  Railroad  Co.,  12  Blatchf.  290,  Fed.  Cas. 
11,265,  holding  defendant  who  is  citizen  of  State  where  action  is  brought 
cannot  objec^  to  jurisdiction  because  other  defendant  resides  in  a  different 
State;  P^ram  v.  United  States,  1  Brock.  262,  Fed.  Cas.  10,906,  holding 
that  in  an  action  against  defendants,  some  of  whom  are  nonresidents,  judg- 
ment may  be  taken  against  the  residents;  Florence  etc.  Co.  v.  Grover  etc. 
Co.,  Holmes,  242,  Fed.  Cas.  4883,  holding  under  later  act  one  defendant 
may  remove  cause  though  others  be  citizens  of  same  State  as  plaintiff; 
Doremas  v.  Bennet,  4  McLean,  225,  Fed.  Cas.  4001,  holding  defendant  can- 
not plead  to  jurisdiction  because  other  defendants  and  plaintiff  are  citizens 
of  same  State;  Wildes  v.  Parker,  3  Sumn.  596,  Fed.  Cas.  17,652,  court 
doubting  whether  American  citizen  domiciled  in  foreign  country  is  an 
alien;  Froment  v.  Duclos,  30  Fed.  385,  a  case  concerning  a  consul,  and 
hence  one  where  Federal  courts  have  exclusive  jurisdiction. 

Denied  in  Wiggins  v.  The  Railway,  1  Hask.  (Fox's  Dec.)  126,  128,  129, 
130,  Fed.  Cas.  17,626,  holding  Circuit  Court  has  jurisdiction,  though  re- 
spondent is  a  nonresident,  served  in  this  State,  and  remaining  respondents 
are  residents;  Heriot  v.  Davis,  2  Wood.  &  M.  231,  232,  Fed.  Cas.  6404^ 


3  Cr.  268-282  NOTES  ON  U.  S.  REPORTS.  240 

holding  that  if  respondent  appears  court  has  jurisdiction,  though  other 
respondents  be  citizens  of  same  State  as  plaintiff;  Zambrino  y.  Gal- 
veston Ry.,  38  Fed.  451,  holding  that  a  corporation  is  presumed  to  be  a 
citizen  of  the  State  where  created;  as  also  in  Ysletli  v.  Cauda,  67  Fed.  7, 
holding  same  of  municipal  corporation;  Ex  parte  Andrew,  40  Ala.  646,  649, 
651,  holding  where  interests  of  parties  are  distinct,'  requisite  citizenship 
need  not  be  common;  Home  Ins.  Co.  v.  Council,  50  Ga.  541,  holding  a 
foreign  corporation  to  be  an  ''inhabitant,"  and  liable  to  same  taxes  as  indi- 
viduals; Renard  v.  Hargous,  13  Nl  Y.  265,  holding  an  attachment  author- 
ized, though  one  partner  was  a  nonresident;  Cooke  v.  Bank,  52  N.  Y.  110, 
11  Am.  Bep.  676,  holding  a  corporation  a  citizen  of  State  creating,  irre-' 
spective  of  citizenship,  incorporators;  Cromwell  v.  Insurance  Co.,  2  Rich. 
516,  holding  a  corporation's  residence  is  wherever  its  corporate  business  is ; 
Hall  v.  Bank  of  Virginia,  14  W.  Va.  619,  holding  a  corporation  is  a  citizen 
of  State  where  created;  State  v.  Railroad,  45  Wis.  593,  holding  a  corpora- 
tion to  be  a  citizen  of  the  State  where  its  principal  place  of  business  is. 
Distinguished  in  Valarino  v.  Thompson,  7  N.  Y.  582,  where  defendant  was 
•a  consul,  and  Federal  court  had  exclusive  jurisdiction ;  Babcock  v.  Millard, 
2  Fed.  Cas.  299,  where  it  was  not  an  original  suit;  Taylor  v.  Rockefeller, 
23  Fed.  Cas.  795,  holding  cause  may  be  removed  under  later  act,  though 
nominal  plaintiffs  and  defendants  be  of  same  State. 

Removal  of  causes    from  State  to  Federal  courts.    Note,  12  Am.  Bep. 
645. 

Residence  of  corporation  for  jurisdictional  purposes.    Note,  88  Am. 
Dec.  400. 

8  Or.  268-270,  2  I«.  Ed.  436,  OOBDON  ▼.  CALDOLEUQO. 

If  State  court  decrees  In  favor  of  rU^t  claimed  under  Fedelral  act,  Bnpreme 
Court  lias  no  JnrlBdiction  on  wilt  of  error. 

Approved  in  Lynde  v.  Lynde,  181  U.  S.  186,  45  L.  Ed.  814,  21  Sup.  Ct. 
556,  refusing  to  review  State  decree  giving  full  faith  and  credit  to  decree 
in  another  State  for  alimony;  Scott  v.  Jones,  5  How.  375,  12  L.  Ed.  196, 
Roosevelt  v.  Meyer,  1  Wall.  517,  17  L.  Ed.  502,  Missouri  v.  Andriano,  138 
U.  S.  501,  84  K  Ed.  1014,  11  Sup.  Ct.  387,  holding  court  was  without  juris- 
diction; Whitten  v.  Tomlinson,  160  U.  S.  238,  40  L.  Ed.  411,  16  Sup.  Ct. 
300,  and  Fleming  v.  Clark,  12  Allen,  196,  in  general  disoussioi}. 

Time  and  manner  of  raising  and  deciding  questions  in  State  court  to 
obtain  review  in  Federal  Supreme  Court.    Note,  63  L.  B.  A.  54. 

8  Cr.  270-282,  2  L.  Ed.  436,  McFBEBAK  T.  TAYIiOS. 

Vendor  is  bound  by  description  given  by  himself,  though  error  therein 
be  by  innocent  mistiake. 

Approved  in  Josljm  v.  Cadillac  Automobile  Co.,  177  Fed.  867, 101  C.  C.  A, 
77,  holding  that  evidence  of  misrepresentation  was  sufficient  to  make  it 
error  to  instruct  a  verdict  for  defendant;  Kuhlman  t.  Shaw,  91  Neb*  475^ 
136  N.  W.  58,  holding  that  representations  as  to  quantity  of  land  were 


241  McFEERAN  v.  TAYLOR.  3  Cr.  270-282 

material;  Kell  v.  Trenchard,  142  Fed.  23,  where  option  for  purchase  of 
timber  land  stated  minimum  quantity,  and  agent  of  vendor  by  fraudulent 
representations  as  to  boundaries  induced  vendee  to  make  false  estimate, 
vendee  entitled  to  abatement  of  price;  Equitable  Trust  Co.  v.  Milligan, 
31  Ind.  App.  24,  65  N.  E.  1046,  holding  where  party  in  possession  and 
claiming  to  own  whole  of  tract  pointed  out  boundaries  to  proposed  pur- 
chaser and  sale  was  agreed  on  of  whole  tract,  and  neither  vendor's  deed 
nor  title  covered  whole  tract,  vendee  may  recover  pro  rata  value  of  omitted 
part ;  dissenting  opinion  in  Browning  v.  Boswell,  215  Fed.  840,  132  C.  C.  A. 
168,  majority  holding  lessee  estopped  from  asking  cancellation  of  mining 
lease  on  ground  of  misrepresentation  of  quantity,  where  he  had  worked 
mine  for  years  after  knowledge  of  quantity ;  dissenting  opinion  in  Schagun 
v.  Scott  Mfg.  Co.,  162  Fed.  223,  89  C.  C.  A.  189,  majority  holding  where 
plaintiff  received  machine  under  agreement  of  acceptance  or  return  within 
limited  time,  and,  after  trying  it,  retained  it  and  gave  notes  therefor,  which 
after  maturity  were  renewed  and  part  payment  made,  and  continued  un- 
successfully experimenting  with  it,  no  suit  for  fraud  or  deceit  could  be 
maintained;  Smith  v.  Richards,  13  Pet.  38,  10  L.  Ed.  48,  holding  false 
affirmation  of  material  fact,  though  innocently  made,  is  good  ground  for 
rescission ;  Barnes  v.  Union  Pao.  Ry.  Co.,  64  Fed.  90, 12  U.  S.  App.  1,  per- 
mitting recovery  on  misrepresentation,  without  alleging  knowledge  or 
fraud ;  Moline  Plow  Co.  v.  Carson,  72  Fed.  392,  36  U.  S.  App.  448,  holding 
vendor  liable  for  misrepresentation  when  he  ought  to  have  known  its  truth ; 
Ricks  V.  Dillahunty,  8  Port.  138,  holding  an  express  warranty  extends  to 
all  defects,  known  or  unknown;  Pitts  v.  Cottingham,  9  Port.  677,  holding 
false 'representation  gives  vendee  right  to  rescind;  as  also  in  Read  v. 
Wilker,  18  Ala.  333;  Sears  v..Hicklin,  13  Colo.  152,  21  Pac.  1024,  holding 
material  misrepresentation  made  by  mistake,  ground  for  relief,  though 
vendee  might  have  learned  its  falsity ;  Smith  v.  Mitchell,  6  Ga.  480,  holding 
knowledge  of  maker  of  material  misrepresentation  immaterial;  as  also  in 
ITammons  v.  Espy,  1  Wils.  (Ind.)  538,  and  Borders  v.  Kattleman,  142  III. 
104,  31  N.  E.  21 ;  Cowger  v.  Gordon,  4  Blaekf .  113,  even  if  vendor  believes 
misrepresentation  to  be  true,  he  is  liable;  Frenzel  v.  Miller,  37  Ind.  13, 
10  Am.  Bep.  67,  holding  knowledge  of  maker  of  misrepresentation  im- 
material ;  Wilcox  V.  Iowa  Wesley  an  University,  32  Iowa,  374,  but  purchaser 
must  have  relied  on  them;  Waters  v.  Mattingly,  1  Bibb,  244,  holding 
knowledge  of  maker  of  misrepresentation  is  immaterial;  Bean  v.  Herrick, 
12  Me.  269,  28  Am.  Dec.  180,  holding  though  party  making  misrepresenta- 
tion has  no  interest,  he  is  liable;  Taymon  v.  Mitchell,  1  Md.  Ch.  499,  if 
misrepresentation  is  material,  knowledge  of  maker  is  immaterial;  Parham 
V.  Randolph,  4  How.  (Miss.)  451,  35  Am.  Dec.  405,  holding  any  misrepre- 
sentation by  vendor  as  to  title  is  fraudulent ;  Rimer  v.  Dugan,  39  Miss.  483, 
77  Am.  Dec.  688,  holding  material  misrepresentation,  though  innocently 
made,  is  binding;  Owens  v.  Rector,  44  Mo.  393,  holding  knowledge  of 
seller  as  to  misrepresentation,  a  material  question  of  fact;  Phillips  v. 
Jones,  12  Neb.  215,  10  N.'  W.  709,  holding  vendor  liable  for  misrepresenta- 
tion, though  made  through  mistake;  Leavitt  v.  Sizer,  35  Neb,  85,  52  N.  W. 
833,  holding  party  liable,  though  not  knowing  statement  ontrae;  Hoook  v. 

1—16 


3  Cr.  283-298  NOTES  ON  U.  S.  REPORTS.  242 

Bowman,  42  Neb;  84,  47  Am.  St.  Rep.  694,  60  N.  W.  390,  holding  false 
description  of  property  grounds  for  rescission  of  contract.  Rule  applied 
in  Walsh  v.  Hall,  66  N.  0.  241,  holding  defendant  had  right  of  rescission 
of  contract  induced  by  fraudulent  misrepresentation;  McCall  v.  Davis, 
56  Pa.  St.  435,  94  Am.  Dec.  96,  holding  absence  of  willful  fraud  in  vendor 
will  not  relieve  him  from  mistake ;  Donelson  v.  Weakley,  3  Yerg.  197,  hold- 
ing material  misrepresentation  authorizes  rescission;  Lewis  v.  McLiemore, 
10  Yerg.  209,  holding  party  liable  for  misrepresentation  of  material  fact, 
innocently  made,  upon  similar  facts  as  original  case;  also  McMullin  v. 
Sanders,  79  Va.  365,  and  Miner  v.  Medbury,  6  Wis.  309. 

Distinguished  in  Dorsey  v.  Watkins,  151  Fed.  346,  holding  rule  in- 
applicable to  sale  of  livestock  where  there  was  no  warranty  and  purchaser 
had  opportunity  for  inspection;  Buford  v.  Guthrie,  14  Bush  (Ky.),  694, 
where  misrepresehtation  was  as  to  title  and  title  was  made  good;  Brooks 
V.  Hamilton,  15  Minn.  34,  where  party  had  opportunity  to  examine  the 
goods ;  Erie  etc.  Wo^ks  v.  Barber,  106  Pa.  St.  141,  51  Am.  Rep.  516,  hold- 
ing that  to  recover  in  action  of  deceit,  defendant  must  have  been  guilty  of 
some  moral  wrong;  Smith  v.  Mariner,  5  Wis.  577,  68  Am.  Dec.  78,  where 
there  was  no  contract,  but  representation  was  as  to  date  of  public  sale. 

Avoidance  of  contracts  for  mutual  mistake  of  fact.    Note,  45  Am. 
Dec.  682. 

Liability  of  vendor  of  realty  for  false  representations  innocently  made. 
Note,  Ann.  Gas.  19130,  68. 

Misrepresentation   as   to   location   of  property.    Note,  38  L.   R.  A. 
(N.  S.)  803. 

Finding  of  Jury,  contradicting  fact  admitted  by  pleadings  is  to  be  diB- 
regarded. 

Approved  in  Grady  v.  Robinson,  28  Ala.  303,  holding  defendant  cannot 
prove  a  fact  which  he  failed  to  put  in  issue  in  his  answer;  Roth  v.  Miller, 
15  Serg.  &  R.  105,  holding  verdict,  contradicting  a  fact  admitted  in  plead- 
ing, is  to  be  disregarded. 

Distinguished  in  Bright  v.  Haggin,  Hard.  638,  holding  that  defendant 
denying  contract  in  bill,  but  setting  up  one  under  different  circumstances, 
'does  not  have  to  prove  the  circumstances. 

Miscellaneous.  Cited  in  Keatts  v.  Rector,  1  Ark.  425,  HoUingshead  v. 
McKenzie,  8  Ga.  459,  and  Woodman  v.  Freeman,  25  Me.  554,  560,  but  not 
in  point. 

S  Cr.  283-293,  2  L.  Ed.  441,  WILSON  V.  SPEED. 

Miscellaneous.  Cited  in  Sarchet  v.  The  Sloop  Davis,  Crabbe,  191,  Fed. 
Cas.  12,357,  but  not  in  point. 

S  Or.  293-298,  2  L.  Ed.  444,  BODDIOUM  Y.  KIBK. 

Formal  errors  in  taking  dHWSltion  h^d  to  have  been  waived. 

Cited  in  Shutte  v.  Thompson,  15  Wall.  160,  21  L.  Ed.  156,  holding  that 
refraining  from  objecting  until  after  possibility  of  removal  is  a  waiver;  to 


\ 


243  DOUGLASS  v.  McALLISTER.  3  Cr.  298-300 

same  effect,  Doane  v.  Glenn,  21  Wall.  35,  22  Ir.  Ed.  476,  and  Howard  v. 
Siillwell  &  Bierce,  139  U.  S.  205,  35  L.  Ed.  150,  11  Sup.  Ct.  503,  holding 
failure  to  object  to  formal  irregularity  in  taking  deposition  amounts  to  a 
waiver;  Murray  v.  Larabie,  8  Mont*  213, 19  Pac.  576,  delay  in  objecting  to 
defect  waives  it;  Town  of  Alton  v.  Town  of  Gilmanton,  2  N.  H.  521,  522, 
holding  attorney  may  waive  any  objection  to  notice;  Perkins  v.  Hawkins, 
9  Gratt.  655,  overruling  objection  made  after  reading  of  deposition,  and 
after  death  of  witness. 

Distinguished  in  Webb  v.  Ritter,  60  W.  Va.  228,  54  S.  E.  498,  holding 
that  service  of  notice  to  take  deposition  of  resident  upon  attorney  insuffi- 
cient, in  absence  of  waiver  of  lack  of  service. 

Where  notice  says  commission  will  adjourn  tram  day  to  day,  if  they 
adjourn  for  more  than  one  day,  deposition  is  not  taken  agreeably  to  notice. 

Approved  in  Harding  v.  Merrick,  3  Ala.  60,  holding  commission  could  not 
adjourn  to  a  day  more  remote  than  that  succeeding.      ^ 

Distinguished  in  Glover  v.  Mullings,  2  Stew.  &  P.  39,  where  there  was  no 
direction  to  adjourn  from  day  to  day;  Mann  v.  County  Court,  58  W.  Va. 
661,  52  S.  E.  779,  determining  power  of  court  to  adjourn  to  distant  day. 

Deposltiona  to  perpetuate  testimony  may  be  taken  according  to  common 
Dsaga 

Approved  in  Westinghouse  Mach.  Co.  v.  Electric  Storage  Battery  Co., 
17i)  Fed.  432,  25-^  R.  A.  (N.  S.)  678,  95  C.  C.  A.  600,  holding  court  has 
jurisdiction  to  entertain  original  bill  in  perpetuam  rei  memoriam;  United 
States  V.  Fifty  Boxes  etc.  of  Lace,  92  Fed.  603,  holding  phrase  in  Rev. 
Stat.,  §  866,  "according  to  common  usage"  means  according  to  usage  when 
section  was  enacted ;  Indng  v.  Lutton,  1  Cr.  C.  C.  575,  Fed.  Cas.  7078,  hold- 
ing notice  of  motion  to  take  depositions  may  be  given  to  attorney. 

Distinguished  in  The  West  Minister,  96  Fed.  767,  holding  admiralty 
eoorts  need  not  conform  to  State  practice  in  taking  depositions. 

under  plea  of  payment  to  bond,  evidence  of  wheat  delivered  and  of  debts 
anigned  will  support  issae. 

Approved  in  Howe  v.  Mackay,  5  Pick.  46,  and  Richbaugh  v.  Dugan,  7  Pa. 
St.  396,  holding  under  plea  of  payment,  defeiidant  may  show  a  chattel  or 
land  was  received  as  satisfaction.  f 

Miscellaneous.  Cited  in  United  States  v.  Parrott,  MoAU.  456,  457,  Fed. 
Cas.  15,999,  United  States  v.  Cameron,  15  Fed.  796,  5  McCrary,  97,  but  not 
in  point. 

3  Cr.  298-^00,  2  L.  Ed.  245,  D0Uai.A88  y.  McALUBTEB. 

'  Value  of  arti<de  sold  on  day  cause  of  action  arose  is  measure  of  damages 
for  breach. 

Approved  in  Berbarry  v.  Tombacker,  162  N.  C.  499,  77  S.  E.  413,  holding 
that  no  substantial  damages  being  shown,  plaintiff  entitled  to  recover  nomi- 
nal damages  only;  Willis  v.  Dudley,  10  Ala.  938,  holding  purchaser  entitled 
to  value  of  article  if  warranty  had  been  true;  Leach  v.  Smith,  25  Ark.  253, 


3  Cr.  300-311  NOTES  ON  U.  S.  REPORTS.  2tt 

allowing  value  of  article  at  time  it  was  due ;  Mc Alpin  v.  Lee,  lA  Conn.  133, 
holding  measure  of  damages- is  difference  between  price  agreed  upon  and 
real  value  of  property;  Davenport  v.  Wells,  1  Iowa,  599,  holding  value  of 
goods  on  day  they  were  due  the  measure  of  damages;  Thompson  v.  Howes, 
14  La.  Ann.  45,  allowing  market  price  of  article  at  time  of  breach;  Clark 
V.  Pinney,  7  Cow.  687,  allowing  difference  between  contract  price  and  value 
of  goods  at  time  of  delivery;  Wilson  v.  Robertson,  1  Overt.  466,  holding 
value  of  land  at  time  of  rendering  judgment  the  daihages;  Hendrick  v. 
Stewart,  1  Overt.  477,  holding  party  is  entitled  to  what  he  actually  lostj 
Ferris  v.  Barlow,  2  Aikens,  107,  following  rule;  dissenting  opinion  in 
Christian  v.  Miller,  3  Leigh  (Va.),  83,  23  Am.  Dec.  254^  majority  holding 
where  there  is  failure  to  deliver  as  per  contract,  remedy  of  purchaser  is 
damages  for  breach  of  contract. 

In  jury  trial  court  Is  bound  to  give  an  opinion  upon  any  releraat  point. 

Approved  in  Emerson  v.  Hogg,  2  Blatchf .  7,  Fed.  Cas.  4440,  holding  ex- 
ceptions will  lie  for  refusal  to  give  instructions ;  Colquitt  v.  Thomas,  8  Ga. 
272,  giving  improper  charge  amounts  to  a  refusal  to  charge ;  State  v.  Brette, 
6  La.  Ann.  662,  holding  where  judge  refuses  to  charge  a  certaifi  way,  but 
jury  find  in  accordance  with  charge  requested,  no  error;  State  v.  Donnelly, 
9  Mo.  App.  525,  holding  court  may  refuse  instructions  based  upon  hypo- 
thetical facts,  where  there  is  no  competent  evidence  tending  to  prove  them ; 
State  V.  Hascall,  6  N.  H.  359,  court  may  refuse  to  instruct  as  to  point  not 
raised  at  tricil;  Linn  v.  Ross,  16  N.  J.  L.  57,  holding  refusal  to  charge  is 
error;  Dunlop  v.  Patterson,  5  Cow.  246,  holding  it  is  not  error  to  refuse  to 
charge  upon  matter  to  which  attention  was  not  drawn;  Halliday  v.  Mc- 
Dougall,  22  Wend.  273,  holding  that  a  refusal  to  charge  that  general  repu- 
tation is  not  alone  sufficient  to  establish  a  copartnership,  is  not  error. 

3  Or.  SOO-Sll,  2  L.  Ed.  446,  SIMMS  v.  SL00X7M. 

Fraudulent  judgments  are  not  absolutely  void,  and  all  acts  perfonned 
under  them  are  valid  as  respects  third  persons.  Obligor  on  prison-bounds  bond 
is  protected  by  discharge  from  prison  rules  under  Virginia  insolvent  act  fraud- 
ulently obtained. 

Approved  in  dissenting  opinion  in  Haddock  v.  Haddock,  201  U.  S.  627, 
60  L.  Ed.  893,  26  Sup.  Ct.  525,  majority  holding  mere  domicile  within  State 
of  one  party  to  marriage  does  not  give  courts  of  that  State  jurisdiction  to 
render  decree  of  divorce  enforceable  in  all  other  States  against  nonresident 
only  constructively  served;  In  re  Casey,  195  Fed.  328,  holding  order  in 
bankruptcy  obtained  on  false  testimony  not  collaterally  attackable;  Ammi- 
don  V.  Smith,  1  Wheat.  460,  4  L.  Ed.  135,  136,  a  similar  case,  holding  dis- 
charge of  prisoner,  obtained  by  fraud,  is  lawful  discharge,  and  no  action 
lies  on  the  bond ;  Noble  v.  Railroad,  147  U.  S.  174,  37  L.  Ed.  127, 13  Sup.  Ct. 
274,  holding  judgment  cannot  be  impeached  collaterally,  even  if  court  was 
imposed  upon;  Ex  parte  Freedley,  Crabbe,  550,  Fed.  Cas.  5079,  court  can- 
not compel  purchaser  at  sheriff's  sale  to  relinquish  property  though  judg- 
ment be  reversed;  Derby  v.  Jacques,  1  Cliff.  437,  Fed.  Cas.  3817,  holding 
judgment  cannot  be  questioned  collaterally;  Bank  of  the  United  States  v. 
Voorhees,  1  McLean,  224,  Fed.  Cas.  939,  holding  purchaser  under  judg- 


245  SIMMS  V.  SLOCUM,  3  Cr.  300^311 

menty  however  erroneous,  is  protected  ^  Fanners*  L.  &  T.  Co.  v.  McKinney, 
6  McLean,  10,  Fed.  Cas.  4667-,  holding  judgment  cannot  be  treated  as  a 
nullity  for  error  in  proceedings ;  "Woodhull  v.  Wagner,  1  Bald.  299,  Fed. 
Cas.  17,975,  holding  discharge  by  bankrupt  laws  of  foreign  country  no  bar 
to  action  here;  Hancock  v.  Jenks,  21  Fed.  914,  recital  "that  patentee  had 
made  oath,"  cannot  be  inquired  into;  Davis  v.  Cathey,  1  Stew.  404,  holding 
fraudulent  discharge  of  debtor,  without  collusion  of  surety,  exempts  latter; 
Mabry  v.  Hemdon,  8  Ala.  863,-  query  whether  discharge  of  bankrupt  can  be 
impeached  for  fraud ;  Bumham  v.  Stone,  101  Cal.  174,  35  Pac.  630,  holding 
sheriff  taking  possession  under  fraudulent  judgment  is  not  a  trespasser; 
Camp  v.  Moseley,  2  Fla.  195,  holding  an  ofi&cer  protected  under  process, 
showing  court  has  jurisdiction  of  subject  matter ;  Ponder  v.  Moseley,  2  Fla. 
268,  48  Am.  Dec.  202,  holding  judgments  import  absolute  verity  until  re- 
versed ;  as  also  in  Wiley  v.  Kelsey,  9  Ga.  120 ;  Jamison  v.  Beaubien,  3  Scam. 
115,  36  Am.  Dec.  535».  holding  pre-emption  may  be  shown  to  have  been 
obtained  by  fraud;  Wadhams  v.  Gay,  73  111.  422,  holding  innocent  pur- 
chaser at  judicial  sale  not  affected  by  reversal  of  judgment;  Gilman  v. 
Hamilton,  16  111.  232,  holding  decree  of  specific  performance  is  not  judicial 
sale,  purchaser  is  not  protected  under  erroneous  judgment;  Granger  v. 
Clark,  22  Me.  130,  holding  judgment,  where  want  of  jurisdiction  is  not  on 
record,  not  impeachable;  .Wilton  Mfg.  Co.  v.  Butler,  34  M^er'411,  holding 
officer  is  protected  under  irr^ular  writ,  though  judgment  afterward  re- 
versed; Way  V.  Howe,  108  Mass.  507,  11  Am.  Rep.  390,  holding  dischai^ 
in  bankruptcy  cannot  be  impeached  for  fraud;  Milburn  v.  Gilman,  11  Mo. 
€7,  holding  sheriff  levying  execution  under  fraudulent  judgment  not  a 
trespasser;  Johnson  v.  Jones,  2  Neb.  133,  holding  judgment  cannot  be 
attacked  collaterally  for  falsity  of  return  of  summons;  Lincoln  v.  Williams, 
12  Serg.  &  R.  106,  where  debtor  performs  bond,  surety  cannot  be  held, 
though  the^  was  fraud  in  its  inception ;  Farmers'  Bank  v.  Boyer,  16  Serg. 
ft  R.  50,  holding  surety  does  not  stand  on  more  advantageous  terms  than 
principal;  Petterman  v.  Murphy,  4  Watts,  426,  28  Am.  Dec.  730,  holding 
title  of  innocent  purchaser  at  judicial  sale  unaffected  by  fraud  in  judg- 
ment; Eldridge  v.  Bush,  Smith,  297,  holding  as  in  main  case  upon  similar 
facts;  Hoffman  v.  Coster,  2  Whart.  472,  holding  ju^^^ent,  though  fraudu- 
lent, cannot  be  impeached  by  a  party  or  privy;  Cochran  y.  Eldridge,  49 
Pa.  St.  369,  holding  court  has  power  to  relieve  against  inequitable  award  of 
arbitrators;  Gregg  v.  Bigham,  1  Hill  (S.  C),  303,  26  Am.  Dec.  183,  holding 
purchase  under  fraudulent  judgment  good;  Hunter  v.  Ruff,  47  S.  C.  554, 
58  Am.  St.  Bep.  930,  25  S.  E.  75,  holding  judgment  voidable  where  de- 
fendant was  not  properly  summoned;  to  same  effect  as  original  case, 
Hibber  v.  Hammond,  2  Strob.  107,  holding  discharge  of  prisoner  releases 
bondsmen;  Turner  v.  Malone,  24  S.  C.  406,  holding  judgment  will  not  be 
avoided  collaterally,  for  lack  of  jurisdiction  not  appearing  on  record; 
Raymond  v.  Southerland,  3  Vt.  506,  holding  certificate  of  board  of  com- 
missioners as  to  notice  conclusive;  Jackson  v.  Astor,  1  Pinn.'159,  39  Am. 
Dec  ^Mfi,  holding  judgment  cannot  be  impeached  collaterally. 

Distinguished  in  Pratt  v.  Northam,  5  Mason,  103,  Fed.  Cas.  11,376,  hold- 
ing jnd^nent  in  Court  of  Probate,  obtained  by  fraud,  not  conclusive; 


3  Cr.  311-319  NOTES  ON  U.  S.  REPORTS.  246 

Murchison  v.  Wliite,  54  Tex.  86,  holding  fraudulent  judgment  is  open  to 
collateral  attack  by  strangers. 

Defects  in  process  which  do  not  affect  officer.    Note,  21  Aiji.  Doc.  198. 

Character  and  kinds  of  judgments  and  orders  not  collaterally  assail- 
able for  fraud  not  affecting  jurisdiction.  Note,  36  L.  R.  A.  (N.  S.) 
988. 

3  Cr.  311-319,  2  L.  Ed.  450,  HARRIS  v.  JOHNSTON. 

Indorsee,  in  Virginia,  cannot  sue  remote  indoner  at  law. 

Cited  in  Walker  v.  Brooks,  125  Mass.  245,  holding  assignee  cannot  sue 
in  equity,  because  he  cannot  sue  at  law  in  his  own  name;  Hunter  v.  Hemp- 
stead, 1  Mo.  70,  holding  indorsee  can  sue  immediate  indorser;  McGee  v. 
Lynch,  3  Hayw.  106,  holding  assignee  cannot  sue  remote  assignor. 

Distinguished  in  Clifford  v.  Keating,  3  Scam.  262;  where'statute  provided 
that  all  indorsers  should  be  liable  to  last  assignee. 

Bill  of  parcels  delivered  by  A  and  stating  goods  as  bouglit  of  A  Ik  B» 
may  be  explained  by  extraneous  evidence  to  show  A  Ik  B  not  Joint  owners. 

Approved  in  Grant  v.  Frost,  80  Me.  205,  13  Atl.  882,  holding  bill  of 
parcels  is  always  open  to  parol  evidence,  to  show  the  real  terms ;  Hazard  v. 
Loring,  10  Cusb.  268,  and  Jones  v.  Rahilly,  16  Minn.  324,  holding  that 
transfer  of  personal  property  may  be  shown  orally  to  have  been  pledge; 
Wallace  v.  Rogers,  2  N.  H.  507,  admitting  parol  evidence  to  change  terms 
in  a  bill  of  parcels;  Perrine  v.  Cooley,  39  N.  J.  L.  452,  admittin^parol 
evidence  of  representations  as  to  soundness  of  a  horse;  Crosby  v.  Canal 
Co.,  141  N.  Y.  592,  36  N.  E.  334,  admitting  parol  evidence  of  a  transaction 
to  show  whether  it  was  a  sale  or  a  bailment. 

Parol  evidence  to  contradict  written  instrument.  Note,  11  E.  &.  0. 
226. 

Action  cannot  be  maintained  on  original  contract  by  one  wbd  has  received 
note  as  conditional  payment  and  indorsed  it  to  thlxd  person. 

Approved  in  United  States  v.  United  States  Fidelity  &  Guaranty  Co., 
172  Fed.  270,  surety  on  government  contractor's  bond  is  not  released  from 
liability  to  subcontractor  by  latter's  taking  contractor's  note  for  his  claim 
due  in  three  months,  but  which  did  not  mature  until  final  settlement  be- 
tween government  and  contractor;  Looney  v.  District  of  Columbia,  113 
U.  S.  261,  28  L.  £d.  975,  5  Sup.  Ct.  464,  to  facts  similar  to  those  in  prin- 
cipal case;  Russell  v.  Hester,  10  Ala.  536,  holding  failure  of  creditor  to 
preser\'e  liability  of  indorser  of  promissory  note,  received  for  debt,  renders 
him  liable;  Cocke  v.  Chaney,  14  Ala.  66,  by  transferring'note,  creditor  ac- 
cepts it  as  payment ;  Ware  v.  Russell,  57  Ala.  45,  29  Am.  Rep.  711,  holding 
if  creditor  transfers  collateral  note  first  it  operates  pro  tanto  as  payment 
of  original  vote ;  Ringgold  v.  Newkirk,  3  Ark.  109,  holding  guarantor  can- 
not be  held  unless  creditor  uses  reasonable  diligence;  Costar  v.  Davies,  8 
Ark.  217,  46  Am.  Dec.  812,  holding  note  received  in  discharge  of  an  open 
account  is  a  bar  to  an  action  on  that  account;  Salomon  v.  Pioneer  Co-op- 


247  DIXON  V.  RxiMSAY,  3  Cr.  319-324 

craiive  Co.,  21  Fla.  382,  allegation  in  plea  that  defendant  gave  draft  on 
third  person  which  was  accepted  as  payment  constitutes  a  good  defence; 
Wylly  V.  Collins,  9  Ga.  240,  holding  note  of  debtor  or  third  person  not  pay- 
ment, unless  accepted  as  such;  Stevens  v.  Bradley,  22  111.  248,  holding 
where  vendor  took  notes  without  indorsement,  he  cannot  recover  of  pur- 
chaser ;  Patapsco  Ins.  Co.  v.  Smith,  6  Har.  &  J.  170,  14  Am.  Dec.  270,  hold- 
ing one  accepting  note  of  agent  for  debt,  cannot  sue  principal ;  Hoffman  v. 
Johnson,  1  Bland  Ch.  107,  holding  that  where  note  is  given,  creditor  must 
use  due  diligence  in  collecting;  Watkins  v.  Worthington,  2  Bland  Ch.  527, 
holding  where  a  decedent  and  creditor  are  jointly  liable,  creditor  must 
show  how  decedent  was  bound;  Wright  v.  First  Crockery  Ware  Co.,  1 
If.  !tT.  282,  283,  8  Am.  Dec.  69,  70,  holding  that  vendor  taking  agent's  note 
cannot  sue  principal;  Hill  v.  Marcy,  49  N.  H.  269,  holding  that  a  creditor 
selling  a  negotiable  note  is  presumed  to  have  taken  it  as  payment;  Hut- 
chins  V.  Olcutt,  4  Vt.  555,  24  Am.  Dec.  639,  holding  promissory  note  re- 
ceived as  payment  a  bar  to  action  on  account ;  Torrey  v.  Baxter,  13  Vt.  457, 
holding  note  of  third  person  proving  unavailable  is  not  pasmient;  Dickin- 
son V.  King,  28  Vt.  381,  holding  note  not  pajrment,  though  negotiaSd,  if 
indorsee  has  unsatisfied  judgment. 

Distinguished  in  Roach  v.  HuUings,  16  Pet.  326,  10  L.  Ed.  981,  where 
there  was  no  evidence  to  show  a  note  had  been  given ;  Stebbins  v.  Kellopp, 
5  Conn.  269,  where  note  was  not  received  as  conditional  payment  and  was 
not  passed  away ;  Penny  v.  Crane,  80  111.  247,  holding  where  note  is  taken 
as  collateral,  party  is  an  absolute  guarantor;  Daniels  v.  Bumham,  2  La. 
247,  where  bills  given  were  protested;  Wade  v.  Staunton,  5  How.  (Miss.) 
635,  where  note  was  not  taken  as  payment;  Steamboat  Charlotte  v.  King- 
land,  9  Mo.  67,  68,  where  note  was  not  transferred. 

Surrender  of  negotiable  paper  as  condition  to  recovery  on  original  ob- 
ligation.   Note,  20  Ann.  Cas.  867. 

t^ayment  by  commercial  paper.    Note,  35  L.  R.  A.  (N.  S.)  41. 

3  Cr.  319-324,  2  L.  Ed.  453,  DIXON  V.  BAM8AT. 

Foreign  executor  cannot  maintain  suit  in  domestic  const  upon  his  foreign 
letters. 

Approved  in  Courtney  v.  Pra^t,  160  Fed.  563,  87  C.  C.  A.  463,  holding 
citizen  of  Kentucky  cannot  maintain  action  there  against  nonresident  ex- 
ecutor; Vaughn  v.  Northup,  15  Pet.  6,  10  L.  Ed.  641,  holding  that  an  ad- 
ministrator in  a  State  is  not  liable  to  be  sued  in  District  of  Columbia; 
Xoonan  v.  Bradley,  9  Wall.  400,  19  L.  Ed.  759,  holding  that  an  adminis- 
trator ap])ointed  in  one  State  cannot  sue  in  another ;  Melius  v.  Thompson, 
1  pliff.  128,  131,  132,  Fed.  Cas.  9405,  holding  administrator  could  not  be 
sued  in  foreign  State;  Swatzel  v.  Arnold,  Woolw.  388,  Fed.  Cas.  13,682, 
holding  administrator  may  maintain  suit  in  foreign  State,  if,  after  obtain- 
tng  letters  there,  he  avers  it  by  amendment;  Eells  v.  Holder,  2  McCrary, 
622, 12  Fed.  669,  holding  administrator  cannot  sue  out  of  the  State  where 
appointed;  Kropff  v.  Poth,  19  Fed.  200,  holding  administrator  cannot  con- 
tinue suit  brought  in  another  State,  unless  he  has  taken  out  letters  there; 


3  Cr.  319-324  NOTES  ON  U.  S.  REPORTS.  248 

Lusk  V.  Kinjball,  87  Fed.  547,  holding  suit  commenced  by  foreign  adminis- 
trator without  first  taking  out  letters  here  is  a  nullity;  Leavens  v.  Butler, 
8  Port.  401,  holding  court  could  not  direct  the  division  of  lands  situate  in 
other  States;  Harrison  v.  Mahorner,  14  Ala.  835,  holding  administrator 
may  sue  in  another  State,  under  statute,  on  recording  letters;  Equitable 
Life  Assurance  Society  v.  Vogel,  76  Ala.  447,  52  Am.  Rep.  846,  holding 
administrator  can  sue  a  foreign  corporation,  in  his  own  State;  Greer  v. 
Fei^son,  56  Ark.  330, 19  S.  W.  967,  holding  suit  cannot  be  revived  against 
executor  appointed  in  another  State;  Hobart  v.  Turnpike  Co.,  15  Conn. 
147,  holding  executor  cannot  sue  in  another  State;  Davis  v.  Smith,  5  Ga. 
206,  48  Am.  Dec.  295,  holding  administrator  is  not  liable  for  failure  to  ap- 
pear in  action  brought  in  another  State;  Naylor  v.  Moody,  2  Blackf.  (Ind.) 
248,  that  executor  cannot  bring  suit  in  another  State;  Lucas  v.  Tucker,  17 
Ind.  44,  holding  executor,  by  complying  with  law  where  realty  is,  acquires 
power  over  it;  Embry  v.  Millar,  1  A.  K.  Marsh.  302,  10  Am.  Dec.  735,  hold- 
ing personalty  cannot  be  recovered  in  another  State,  unless  administrator 
is  appointed  there;  Moore  v.  Tanner,  5  T.  B.  Mon.  46,  17  Am.  Dec.  39, 
holding  that  administrator  in  State  cannot  sue  in  District  of  Columbia; 
Sneed  v.  Ewing,  5  J.  J.  Marsh.  467,  22  Am.  Dec.  48,  holding  a  probate  to 
be  a  judgment  in  rem;  Louisville  &  Nashville  R.  R.  Co.  v.  Brantley,  96  Ky. 
304,  49  Am.  St.  Bep.  295,  28  S.  W.  478,  holding  administrator  cannot  sue 
in  another  State;  Haven  v.  Poster,  9  Pick.  134,  19  Am.  Doc.  362,  holding 
administratrix  had  no  power  to  make  tender  in  another  State;  Sabin  v. 
Oilman,  1  N.  H.  194,  holding  that  an  administrator  cannot  sue  in  another 
State ;  as  also  Taylor  v.  Barron,  35  N.  H.  495 ,  Leonard  v.  Putnam,  51  N.  K. 
250,  12  Am.  Bep.  108,  holding  powers  of  guardians  do  not  extend  to  other 
States;  Haight  v.  Bergh,  15  N.  J.  L.  185,  holding  that  attachment  cannot 
be  issued  against  executors;  Patterson  v.  Pagan,  18  S.  C.  588,  holding  ad- 
ministrator cannot  sue  in  this  State,  unless  letters  are  issued  here;  Cald- 
well V.  Maxwell,  2  Overt.  107,  holding,  where  executrix  moved  to  another 
State  with  the  effects,  courts  in  latter  State  could  specifically  enforce  will; 
Vaughn  v.  Barret,  5  Vt.  336,  26  Am.  Dec.  307,  holding  administrator  has 
no  power  to  discharge  debt  due  from  citizens  of  another  State;  Hooper  v. 
Hooper,  29  W.  ¥a.  294,  1  S.  E.  293,  holding  sureties  liable  for  assets 
brought  by  executor  from  another  State  and  wasted;  dissenting  opinion 
in  Crumlish  v.  Railroad  Co.,  40  W.  Va.  650,  22  S.  E.  99,  agreeing  with  ma- 
jority in  this,  that  administrator  cannot  be  sued  out  of  his  State;  Anthes 
V.  Anthes,  21  Idaho,  310,  121  Pac.  555,  ai^nehdo. 

Distinguished  in  Moore  v.  Petty,  135  Fed.  673,  68  C.  C.  A.  306,  executor 
may  sue  in  foreign  State  to  recover  from  agent  proceeds  of  sale  of  dece- 
dent's realty;  Pedan  v.  Robb,  8  Ohio,  227,  holding  that  ward  could  main- 
tain suit  against  her  guardian's  representatives. 

Foreign  judgments  against  an  executor  or  administrator.    Note,  27 
L.  R.  A.  102,  107,  108. 

Power  of  executor  is  derived  ftom  testator's  will  wliicb  Inyesto  bim  wltA 
whole  personal  estatew 


249  DIXON  V.  RAMSAY.  3  Cr.  319-324 

Cited  in  WaU  v,  BisseU,  126  U.  S.  387,  31  L.  Ed.  775,  8  Sup.  Ct.  982, 
holding,  under  a  statute,  executor  has  no  right  to  disiwse  of  pn^erty,  until 
after  letters;  Gayle  v.  Blackburn,  1  Stew.  433,  holding  executor  has  right 
to  property  in  another  State,  if  he  can  get  it  without  suit ;  Johnes  v.  Jack-^ 
son,  67  Conn.  89,  34  Atl.  711,  deciding  that  service  of  attachment,  before 
will  probated,  holds  property. 

Bight  to  personalty  is  goyemed  by  law  of  testator's  domicile. 

Approved  in  Union  Bank  of  Georgetown  v.  Smith,  4  Cr.  C.  C.  36,  Fed. 
Cas.  14,362,  holding  lex  domicilii  governs  order  of  payment  of  debts;  as 
also  in  Harvey  v.  Richards,  1  Mason,  408,  Fed.  €as.  6184,  as  to  distribution 
of  estate  of  intestate ;  Irving  v.  McLean,  4  Blackf .  53,  and  Barnes  v.  Bras- 
hear,  2  B.  Mon.  382,  as  to  testamentary  disposition;  as  also  in  Penny  v. 
Christmas,  7  Rob.  La.  497;  Binney's  Case,  2  Bland  Ch.  146,  holding,  though 
a  canal  is  declared  personalty,  it  must  be  governed  by  lex  situs;  Rue  v. 
High,  2  Doug.  (Mich.)  522,  holding  will  made  according  to  lex  domicilii 
passes  personalty  wherever  situated;  Garland  v.  Rowan,  2  Smedes  &  M. 
635,  holding  lex  domicilii  governs  distribution  of  personalty;  Fishburne  v. 
Kunhardt,  2  Spears,  562,  holding  registry  of  mortgage  of  personalty  gov- 
erned by  lex  domicilii;  Latine  v.  Clements,  3  Ga.  432,  arguendo. 

Distinpniished  in  Vamum  v.  Camp,  13  N.  J.  L.  336,  25  Am.  Dec.  485, 
holding  that  instrument  legal  at  maker's  domicile  will  not  pass  personalty 
elsewhere,  if  prohibited  by  local  law;  dissenting  opinion  in  Bonati  v. 
Wclsch,  24  N.  Y.  164,  majority  holding  that  rights  of  wife  under  laws  of 
France  will  attach  to  property  of  husband  dying  domiciled  here;  Hyman 
V.  Gaskins,  5  Ired.  (N.  C.)  269,  holding  that  it  is  not  absolutely  necessary 
that  will  should  first  be  submitted  to  forum  of  domicile. 

Suit  for  property  of  testator  is  governed  by  lez  fori. 
Approved  in  Barrielle  v.  Bettman,  199  Fed.  844,  holding  that  alien 
claimant  having  died,  suit  to  recover  personalty  could  not  be  maintained 
in  State  court  by  hi«  heirs;  Clark  v.  Eltinge,  38  Wash.  383,  107  Am.  St. 
Bep.  858,  80  Pac.  559,  in  action  against  husband  and  wife  to  recover  bal- 
ance due  on  mortgage  debt  incurred  while  defendants  were  nonresidents, 
liability  of  wife  depends  on  law  of  State  of  residence  at  time  debt  created ; 
Willard  v.  Wood,  135  U.  S.  313,  34  L.  Ed.  213, 10  Sup.  Ct.  832,  where  mort- 
gagee sued  on  mortgage  debt;  Hinkley  v.  Marean,  3  Mason,  90,  Fed.  Cas. 
6523,  as  to  insolvency  laws;  Thomas  v.  American  Freehold  etc.,  47  Fed. 
554,  holding  proceedings  on  note  regulated  by  lex  fori;  Munos  v.  Southern 
Pac.  Co.,  51  Fed.  190,  2  U.  S,  App.  222,  holding  that  lex  fori  governs  as  to 
statute  of  limitations;  Jordan  v.  Thornton,  7  Ark.  231,  44  Am.  Dec.  548, 
holding  assignor  may  bring  suit  against  previous  indorser,  lex  fori  gov- 
erning; Embry  v.  Miller,  1  A.  K.  Marsh.  302,  10  Am.  Dec.  735,  holding 
action  to  recover  personalty  governed  by  lex  fori;  De  Sobry  v.  De  Laistre, 
2  Har.  &  J.  228,  3  Am.  Dec.  544,  holding  remedy  on  contract  should  be  gov- 
erned by  lex  fori;  Whittemore  v.  Adams,  2  Cow.  632,  holding  an  insolvent 
law,  not  exempting  future  acquisitions,  being  a  remedy,  lex  fori  governs; 
Edmondson  v.  Ferguson,  11  Mo.  345,  holding  remedy  and  contract  are  dis- 
tinct, act  affecting  remedy  is  constitutional. 

Conflict  of  laws  as  to  wills.    Note,  2  L.  R.  A.  (N.  S.)  410. 


3  Cr.  324^37  NOTES  ON  U.  S.  REPORTS.  250 

Misoellaneous.  Cited,  but  not  in  point  in  Holland  y.  Jones,  9  Ind.  496, 
and  Winfried  v.  Yates,  DalL  (Tex.)  364. 

3  Ox.  32^^31,  2  I..  Ed.  455,  SCOTT  y.  NEOBO  IiOTTDON. 

Under  statute  providing,  If  owner  of  slave  removing  Into  Virginia  takes 
required  oath,  slave  shall  not  be  free,  removal  of  master  and  importation 
of  slave  need  not  be  contemporaneous. 

Distinguished,  Murray  v.  McCarty,  2  Munf.  (Va.)  401,  406,  holding  stat- 
ute does  not  authorize  importation  by  citizen  residing  away  temporarily. 

3  Cr.  331-337,  2  IV.  Ed.  467,  WISE  v.  WITHESa 

Decision  of  court-martial  without  its  Jurisdiction  cannot  protect  officer 
who  executed  it. 

Approved  in  McClaughry  v.  Doming,  186  U.  S.  63,  69,  46  L.  Ed.  1055, 
1067,  22  Sup.  Ct.  792,  794,  holding  objection  that  court-martial  of  volun- 
teer was  by  regulars  may  be  taken  on  habeas  corpus ;  Hamilton  v. '  Mc- 
Claughry, 136  Fed.  447,  where  on  return  to  habeas  corpus  respondent  jus- 
tified under  judgment  of  court-martial,  burden  is  on  him  to  show  judgrment 
based  on  positive  law ;  Doming  v.  McClaughry,  113  Fed.  650,  holding  void 
court-martial  of  volunteer  by  regulars;  Luther  v.  Borden,  7  How.  61,  12 
L.  Ed.  607,  holding  person  liable  for  excessive  force  in  enforcing  martial 
law ;  Dynes  v.  Hoover,  20  How.  80,  82,  15  L.  Ed.  844,  where  authorities  are 
examined,  court  holding  it  was  not  false  imprisonment,  where  court-martial 
had  jurisdiction;  dissenting  opinion  in  Dow  v.  Johnson,  100  U.  S.  189, 
25  L.  Ed.  643,  majority  holding  army  officer  not  liable  for  seizing  goods 
in  enemy's  country ;  Smith  v.  Whitney,  116  U.  S.  177,  29  L,  Ed.  604,  6  Sup. 
Ct.  575,  holding  writ  of  prohibition  does  not  lie  to  court-martial  having^ 
jurisdiction ;  Runkle  v.  United  States,  122  U.  S.  566,  30  L.  Ed.  1170,  7  Sup. 
Ct.  1146,  where  jurisdiction  depended  on  approval  of  president,  sentence 
without  it  was  inoperative;  Tolmie  v.  Thompson,  3  Cr.  C.  C.  137,  Fed.  Cas. 
14,080,  holding  sale  by  commissioners  without  jurisdiction  is  void;  Greene 
V.  Briggs,  1  Curt.  333,  Fed.  Cas.  5764,  holding  order  of  justice  of  peace, 
upon  matter  without  his  jurisdiction,  is  void;  United  States  v.  Stowell,  2 
CuVt.  156,  Fed.  Cas.  16,409,  holding  every  fact  necessary  to  existence  of 
authority  must  appear  on  face  of  indictment  or  process;  Smith  v.  Miles, 
Hempst.  34,  Fed.  Cas.  13,079a,  if  court  has  jurisdiction,  officer  is  not  liable 
as  trespasser  on  execution;  The  J.  W.  Frencb,  5  Hughes,  433,  13  Fed.  919, 
920,  holding  that  a  court  may  examine  collaterally  into  jurisdiction  of  an- 
other court  to  pass  upon  title  of  property,  and  an  act  coram  non  judice 
may  be  disregarded;  Thurston  v.  Martin,  5  Mason,  503,  Fed.  Cas.  14,018, 
tax  collector,  in  excess  of  jurisdiction,  imprisoning  one,  is  liable  for  tres- 
pass; Barrett  v.  Hopkins,  2  McCrary,  131,  7  Fed.  313,  holding  jurisdiction 
of  court-martial  may  be  inquired  into;  Clarke  &  Co.  v.  Clarke,  3  Woods, 
412,  Fed.  Cas.  2846,  holding  collectors  collecting  on  property  exempt  are 
trespassers;  Justices  etc.  of  Morgan  Co.  v.  Selman,  6  Ga.  442,  holding 
where  court  of  ordinarjr,  without  jursidiction,  granted  letters,  act  is  void; 
Hall  V.  Rogers,  2  Blackf .  430,  holding  one  arresting  under  warrant  from 


-  ) 

251  WISE  V.  WITHERS.  3  Cr.  331-337 

justice  of  peace  exceeding  jurisdiction,  is  liable ;  Nooe  v.  Bradley,  3  Blackf . 
160,  holding  county  board  exceeding  its  authority  liable;  Barkeloo  v,  Ran- 
dall, 4  Blackf.  478,  32  Am.  Dec.  47,  holding  one  acting  under  attachment 
issued  without  a  bond  is  a  trespasser;  Steel  v.  Williams,  18  Ind.  164,  hold- 
ing one  procuring  arrest  by  void  process,  liable  for  trespass;  dissenting 
opinion  in  Ex  parte  Holman,  28  Iowa,  178,  majority  holding  State  court 
has  no  right  to  interfere  with  jurisdiction  of  Federal  courts;  White  v. 
MeBride,  4  Bibb  (Ky.),  62,  holding  court-martial  being  without  jurisdic- 
tioQ  could  not  punish  the  parties;  Campbell  v.  Webb,  11  Md.  481,  holding 
officer,  acting  under  process,  void  on  its  face,  is  liable;  Brooks  v.  Adams, 
11  Pick.  442,  holding  proceedings  of  court-martial  without  legally  ap- 
pointed judge-advocate  are  void;  Brooks  v.  Daniels,  22  Pick.  601,  holding 
same  as  to  judges  irregularly  chosen ;  Fisher  v.  McGirr,  1  Gray,  45,  61  Am. 
Dec.  404,  discharging  prisoner  committed  by  magistrate  whose  want  of 
jurisdiction  appeared  on  the  face  of  the  proceedings;  Tyler  y.  Pomeroy, 
8  Allen,  485,  holding  one  seized  and  taken  into  camp  without  authority  has 
a  cause  of  action;  Clark  v.  Holmes,  1  Doug.  (Mich.)  394,  holding  actions 
of  inferior  courts  in  excess  of  jurisdiction  are  void;  dissenting  opinion  in 
Wall  V.  Trumbull,  16  Mich.  252,  majority  holding  board  of  supervisors  not 
liable  for  errors  in  judgment,  provided  the